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SOCIAL    JUSTICE 


A   CRITICAL   ESSAY 


BY 


WESTEL  WOODBURY  WILLOUGHBY,  Ph.D. 

ASSOCIATE   PROFESSOR   OF   POLITICAL,   SCIENCE   IN   THE 

JOHNS    HOPKINS    UNIVERSITY 

AUTHOR   OF   "  THE    NATURE   OF  THE    STATE,"    "  RIGHTS   AND 

DUTIES   OF  AMERICAN    CITIZENSHIP,"    ETC. 


THE   MACMILLAN    COMPANY 

LONDON:  MACJVftLLAN  &  CO.,  Ltd. 
1900 

All  rights  reserved 

3486       477 94 S 


Copyright,  1900, 
By  the  MACMILLAN   COMPANY. 


NoTtuooti  Ipresa 

J.  S.  Gushing  &  Co.  -  Berwick  &  Smith 
NorwooU  Alasg.  U.S.A. 


HM 


Co  ffs  etljillircrt 


■^ 


PEEFACE 

The  present  work  lies  within  a  sphere  of  inquiry 

to  which  ethics  may  perhaps  lay  the  best  claim,  but 

to  which  economics  and  politics  have  nevertheless 

M)     a  valid  right.     While  the  facts  dealt  with  by  the 

V     several  social  sciences  are  largely  the  same,  they  are 

(j\'\  examined  from  different  points  of  view.     The  special 

task  which  falls  to  the  ethicist  is  the  determination 

of  the  absolute  value  of  social  institutions,  and  the 

\        statement  in  as  definite  a  form  as  possible   of  the 

^    principles  which  should  govern  men  in  their  efforts 

to  adjust  their  lives  to  the  highest  ideals  of  right 

and  justice.     In  a  certain  sense,  each  social  science 

has  thus  its  own    ethic.      Each   of   these    separate 

ethics  must,  however,  rest  upon   general   principles 

of  right,  which  have  first  to  be  determined  in  the 

abstract.     It  is  the  aim  of  this  volume  to  ascertain, 

if  possible,  these  general  principles. 

The  value  of  this  inquiry  is  dwelt  upon  more  fully 
in  the  opening  chapter,  but  it  will  not  be  amiss  to 
point  out  here  that  it  is  only  as  armed  with  the 
results  which  an  investigation  of  this  sort  affords, 
that  one  becomes  qualified  to  pass  judgment  upon 
the  justness  of  the  demands  so  powerfully  put  forth 


viii  PREFACE 

in  our  day  by  those  large  bodies  of  thinking  men 
and  women  who,  grouped  under  banners  anarchistic, 
socialistic,  or  communistic,  are  demanding  a  radical 
/readjustment  of  social  and  industrial  conditions. 

No  pretence  is  made  that  a  new  system  of  ethics 
has  been  developed.  In  the  main  the  standpoint 
taken  is  that  of  T.  H.  Green  and  the  later  writers 
of  his  school.  The  only  merit  claimed,  therefore,  in 
this  respect,  for  the  present  work,  is  that  in  it  there 
has  been  made  a  more  comprehensive  application 
than  has  perhaps  been  before  attempted  of  tran- 
scendental principles  to  the  concrete  problems  of 
^social  life. 

It  is  hoped,  however,  that  this  work  will  possess 
value  not  only  as  a  study  in  ethical  speculation,  but 
as  a  contribution  to  the  history  of  social  and  political 
philosophy.  In  the  case  of  each  point  considered 
the  treatment  has  taken  the  form  of  an  examination 
and  criticism  of  the  chief  theories  which  have  been 
formulated  in  the  past.  In  stating  these  theories,  it 
has  been  deemed  the  only  satisfactory  way  to  repro- 
duce the  exact  language  of  their  authors,  even 
though  this  has  necessitated  frequent  and,  at  times, 
extended  quotation. 

For  inspiration  as  well  as  direct  assistance,  the 
author  has  drawn  from  so  many  sources  that  it  is 
difficult  to  give  due  acknowledgment  except  so  far 
as  it  can  be  done  in  footnote  references.  In  many 
cases,  however,  the  assistance  derived,  though  none 


PREFACE  ix 

the  less  real,  has  been  of  such  a  general  character  as 
to  render  specific  citation  impossible.  I  wish,  how- 
ever, to  express  the  especial  help  I  have  obtained 
from  my  colleague,  Professor  Sidney  Sherwood.  I 
have  had  the  opportunity  of  discussing  with  him  a 
number  of  the  points  considered,  and  besides  reading 
a  part  of  the  book  in  manuscript,  he  has  read  the 
whole  of  it  in  proof. 

A  portion  of  Chapter  VIII,  under  the  title  "  The 
Right  of  the  State  to  Be,"  has  appeared  as  an  article 
in  the  International  Journal  of  Etliics ;  and  all  of 
Chapter  IX  has  been  published  in  the  American 
Journal  of  Sociology.  I  am  indebted  to  the  editors 
of  these  magazines  for  their  courtesy  in  permitting 
me  to  use  this  material  again  in  this  work. 

Finally,  it  should  be  said  that  these  chapters  were 
originally  delivered  in  lecture  form  at  the  Johns 
Hopkins  University.  This  will  account  for,  and  it 
is  hoped  excuse,  a  certain  amount  of  reiteration  and 
didacticism  which  will  doubtless  appear  as  the  book 
is  read. 

W.  W.  W. 


CONTENTS 


PAGE 

Preface vii 


PAKT   I 

CHAPTER  I 

Introductory:  Nature  and  Value  of  the  Proposed  In- 
quiry       1 

CHAPTER  II 
Justice 13 

CHAPTER   m 
Equality 29 

CHAPTER   IV 
Property 78 

CHAPTER   V 
*^  Canons  of  Distributive  Justice  —  The  Labor  Theory    .     107 

CHAPTER   VI 
The  Labor  Theory  as  applied  to  Property  in  Land      .     156 

CHAPTER  VII 

Other  Canons  of  Distributive  Justice        ....     194 

xi 


PAOB 

The  Right  of  Coercion 215 


Xii  CONTENTS 

PART   II 
CHAPTER  Vin 

CHAPTER  IX 
The  Ethics  of  the  Competitive  Process     ....    269 

CHAPTER  X 
Punitive  Justice •        .        .    316 

Index 381 


SOCIAL   JUSTICE 


SOCIAL   JUSTICE 

PAET   I 
CHAPTER   I 

INTKODUCTORY :  NATURE  AND  VALUE  OF  THE 
PROPOSED  INQUIRY 

Ideals  of  right  constitute  the  essentially  active 
principles  in  our  social  and  political  life.  Dating 
from  the  Revival  of  Learning,  or,  still  more  directly, 
from  the  Protestant  Reformation,  the  sovereignty  of 
the  individual  reason  has  been  increasingly  recog- 
nized. At  first,  the  criticism*  which  sprang  from 
independent  thought  was  directed  almost  wholly 
against  the  Church,  which  had  claimed  for  itself 
the  power  to  promulgate  theological  dogmas  and 
moral  rules,  the  correctness  of  which  the  individual 
was  not  allowed  to  question.  As  the  doctrine  of  the 
right  of  individual  judgment  spread,  however,  polit- 
ical powers  were  brought  within  range  of  criticism. 
The  authority  of  the  State,  as  well  as  of  the  Church, 
the  binding  force  of  law  and  custom,  as  well  as  of 
theological  rule,  was  inquired  into.  Not  only  were 
civil  laws  examined  with  respect  to  their  validity, 
but  the  tenure  and  extent  of  the  authority  of  the 
lawgivers  brought  before  the  bar  of  reason.  Thus, 
in  the  sixteenth,  seventeenth,  and  eighteenth  cen- 


2  SOCIAL  JUSTICE 

turies,  the  doctrine  became  general  that  political 
rulers,  if  they  would  have  the  obedience  of  their 
subjects,  should  hold  themselves  bound  to  observe 
certain  moral  principles,  and  to  administer  their  high 
offices  as  public  trusts.  Incorrectly  interpreted,  this 
thought  led  to  the  French  Revolution.  Correctly 
interpreted,  it  gave  rise  to  representative  and  con- 
stitutional government. 

Within  the  present  century  the  circle  of  current 
conceptions  of  right  has  broadened,  until  the  whole 
sphere  of  industrial  and  social  life  has  been  included. 
In  the  nature  of  things  this  extension  was  bound  to 
come,  and  could  only  be  kept  back  temporarily  by 
popular  apathy  and  ignorance.  As  had  been  the 
case  in  the  field  of  politics,  the  demand  for  social 
reform  has  taken,  in  many  instances,  the  form  of 
Utopias  based  upon  the  crudest  reasoning.  Within 
more  recent  years,  however,  industrial  demands  have 
assumed  more  coherent  form,  and  have  been  sup- 
ported by  closer  reasoning. 

With  that  condemnation  of  conditions  of  life 
which  proceeds  from  the  adherents  of  certain  meta- 
physical schools  we  need  not  be  much  concerned. 
The  philosophical  pessimist  sees,  to  be  sure,  in  his 
survey  of  the  conditions  of  humanity,  an  excess  of 
evil  over  good,  and  of  pain  over  pleasure,  but  such 
criticism  is  not  directed  at  special  conditions.  The 
same  doleful  result  rewards  his  retrospect  of  the  past, 
and  a  similar  shade  clouds  his  horoscope  for  the 
future.  This  lamentable  condition  of  affairs  he  con- 
ceives to  be  due,  not  to  any  special  features  of  our 


INTRODUCTORY  6 

social  life  that  may  be  altered,  but  to  man's  inherent 
nature,  and  his  necessary  relations  to  cosmic  con- 
ditions generally.  Fortunately,  however,  such  meta- 
physical moultings  do  not  constitute  a  characteristic 
of  present  philosophical  thought,  and,  because  of 
their  abstract  and  esoteric  character,  are  not  gen- 
erally influential  in  the  world  of  practical  thought 
and  action.  We  shall,  therefore,  in  the  present  work, 
confine  our  attention  to  those  condemnations  of  our 
social  regime  that  are  based  upon  criticisms  of  fact, 
and  which,  therefore,  lead  to  demands  for  general 
reform. 

These  criticisms  we  find  assuming  a  variety  of 
forms.  On  the  one  hand,  it  is  charged  that  even 
that  degree  of  restraint  which  existing  social  con- 
ditions impose  is  harmful,  and  should  be  lessened. 
This  is  the  position  of  pure  individualists  and  anar- 
chists. On  the  other  hand,  it  is  claimed  by  a  much 
larger  school  that  restraints  still  greater  than  those 
which  now  exist  should  be  placed  upon  human  com- 
petition. This  is  the  opinion  of  collectivists,  nation- 
alists, and  socialists,  and,  in  fact,  of  all  those  who 
advocate  an  extension  of  social  control.  The  com- 
mon predicate,  however,  of  both  schools,  is  that  the 
distribution  of  pleasures  and  privations  which  is 
brought  about  by  present  conditions  is  essentially 
uneconomical  as  well  as  unjust :  uneconomical,  be- 
cause leading  to  waste  and  misdirected  effort ;  unjust, 
because  apportioning  rewards  and  penalties  with  but 
little  reference  to  those  canons  of  desert  which  a  true 
ideal  of  distributive  justice  would  prescribe. 


4  SOCIAL  JUSTICE 

It  needs  no  argument  to  show  that  the  mainten- 
ance of  the  ethical  claim  is  essential  to  the  cause 
advocated.  If  this  feature  be  substantiated,  there  is 
at  once  established  an  almost  convincing  reason  for 
acceptance  of  the  system  based  upon  it.  Until,  how- 
ever, it  has  been  clearly  shown  that  the  principle  of 
distributive  justice  which  lies  at  the  basis  of  a  pro- 
posed scheme  is  sound,  the  argument  in  behalf  of 
its  productive  efficiency  is  not  entitled  to  a  hearing. 
In  truth,  but  few  will  dispute  that  a  reform  which 
will  lead  to  greater  distributive  justice  is  justified, 
even  should  productive  efficiency  be  somewhat  les- 
sened. Conversely,  any  scheme  of  social  or  indus- 
trial organization  which  is  ethically  defective  upon  its 
distributive  side  must  stand  condemned,  whatever 
its  excellence  upon  its  productive  side. 

To  the  recent  English  translation  of  a  work  of 
Menger  which  is  devoted  to  a  history  and  criticism 
of  the  socialistic  claim  of  the  right  of  the  individual 
to  the  whole  produce  of  his  labor,  Professor  Foxwell 
has  prepared  an  introduction,  in  the  course  of  which 
is  clearly  stated  the  importance  of  inquiries  of  the 
character  of  those  with  which  we  are  to  be  con- 
cerned.^ The  argument  is  there  directed  especially 
to  a  demonstration  of  the  utility  of  an  examination 
into  the  validity  of  a  single  principle  of  economic  jus- 
tice, but  so  exactly  do  the  words  represent,  and  so 
brilliantly  do  they  express,  the  motives  which  have 

^  Das  Recht  auf  vollen  Arheitsertrag  in  geschichtlicher  Darstellung, 
translated  by  M.  E.  Tanner  under  the  title  "  The  Right  to  the  Whole 
Produce  of  Labor." 


INTRODUCTORY  6 

led  us  to  undertake  the  present  work,  that  we  cannot 
refrain  from  quoting  them  at  considerable  length. 

After  referring  to  the  fact  that  English  economists 
have  failed  to  give  sufficient  attention  to  the  legal 
conditions  which  underlie  economic  facts,  Professor 
Foxwell  goes  on  to  declare  that  even  the  correction 
of  this  error  will  not  be  enough.  "  We  must  go " 
beyond  the  study  of  positive  law,"  he  says,  "  to  the 
study  of  the  conception  of  ideal  right  on  which  it  is 
based.  It  has  been  said  that  the  science  of  one  age 
is  the  common  sense  of  the  next.  It  might  with 
equal  truth  be  said  that  the  equity  of  one  age  becomes 
the  law  of  the  next.  If  positive  law  is  the  basis  of 
order,  ideal  right  is  the  active  factor  in  progress.  To 
use  the  Comtian  phrase,  there  is  a  dynamical  as 
well  as  a  statical  jurisprudence,  and  both  are  vitally 
important  to  the  economist.  The  whole  aim  and| 
object  of  economic  policy  and  legislation,  the  trend 
of  all  movements  for  social  reform,  revolutionary  or 
progressive,  must  depend  upon  the  prevailing  sense 
of  ideal  right,  upon  the  notions  of  justness  and  fair- 
ness, more  or  less  coherent,  which  recommend  them- 
selves to  the  governing  body  of  opinion  at  any  time 
as  axiomatic  and  unquestionable.  Vague  and  intan- 
gible, perverse  or  impracticable,  as  they  may  seem, 
these  notions  of  right  are  none  the  less  real  and 
resistless  in  their  sway.  They  are  themselves,  no 
doubt,  not  unaffected  by  positive  law,  as  Maine  and 
others  have  shown.  But  in  progressive  societies  they 
are  a  living,  and  in  the  long  run  a  dominant,  force. 
Their  growth  is  slow  and  secular;    revolutions  and 


SOCIAL  JUSTICE 


counter-revolutions  may  run  their  course,  while  they 
remain  but  slightly  changed :  but,  as  they  generally 
develop,  they  fuse  and  transform  the  whole  structure 
of  positive  law,  and  alter  the  face  of  civil  society.  .  .  . 
That  there  are  such  underlying  ideas  of  right,  and 
that  the  whole  tenor  of  legislation  is  silently,  uncon- 
sciously, moulded  by  the  accepted  views  as  to  what  is 
economically  and  constitutionally  fair  and  just,  will 
not  be  disputed.  Crystallized  into  catching  phrases, 
we  meet  with  those  current  ideals  of  equity  at  every 
turn.  .  .  .  One  man,  one  vote ;  a  living  image ;  a 
fair  day's  wage  for  a  fair  day's  work;  equality  of 
opportunity ;  a  chacun  selon  ses  ceuvres  ;  property  is 
a  trust ;  a  man  may  do  as  he  likes  with  his  own  ; 
caveat  emptor ;  laissez  faire,  —  these  and  many  others 
will  be  familiar  to  us  as  effective  instruments  of  eco- 
nomic and  political  movement.  If  they  are  modified, 
the  legislation  of  all  free  countries  will  reflect  the 
change ;  until  they  are  modified,  no  forcible  revolu- 
tion will  have  more  than  a  superficial  and  transient 
effect."  And  a  little  farther  on  Professor  Foxwell 
makes  the  emphatic,  but  fundamentally  true,  state- 
ment, that,  "  It  is  hardly  too  much  to  say  that  in 
the  gradual  development  of  these  ideals  of  right,  and 
1  the  relation  between  their  development  and  the  devel- 
opment of  positive  institutions,  we  have  the  key  to 
social  stability.  That  form  of  society  is  most  surely 
rooted  in  which  these  movements  are  fairly  concur- 
rent, in  whose  legal  structure  and  economic  relations 
the  prevailing  notions  of  equity  or  axioms  of  justice 
are   most  faithfully  mirrored ;    and  where  they  are 


INTRODUCTORY  7 

carried  out  in  similar  degree  in  all  the  various  sides 
of  social  life." 

Important  as  is,  at  any  time,  the  study  of  these 
underlying  ethical  principles,  especially  urgent  is  the 
need  for  their  examination  in  these  present  days  of 
social  and  political  unrest.  Together  with  the  ex- 
tension of  the  political  franchise  there  has  been 
secured  within  recent  years  an  equal  or  greater  dif- 
fusion among  the  people  of  intellectual  enlighten- 
ment and  freedom.  Ultimate  political  power  has 
thus  been  diffused  at  the  same  time  that  tradition 
and  dogmatic  religion  have  lost  their  former  con- 
trolling force.  Individual  reason  has  been  recog-  A 
nized  as  the  true  judge  of  right  and  wrong,  with  the  ■ 
result  that  the  peoples  of  all  civilized  countries  are 
subjecting  social  and  economic  conditions  to  the  same 
tests  of  reasonableness  and  justice  as  those  by  which 
they  have  questioned  in  the  past  the  rightfulness  of 
political  institutions.  This  criticism  has  revealed 
discrepancies  in  many  places  between  the  ethical 
ideals  currently  held,  and  the  social  and  economic 
conditions  actually  existing.  "  In  these  respects," 
says  Professor  Foxwell,  "  our  own  time  does  not  com- 
pare favorably  with  the  Middle  Age.  Not  only  is 
our  age  one  of  exceptionally  rapid  change,  but  our 
ideals  are  changing  even  more  rapidly  than  our 
institutions,  so  that  we  live  in  an  atmosphere  of 
social  ferment  and  revolutionary  proposals.  What 
makes  the  situation  still  more  critical,  and  forms  to 
my  mind  the  peculiar  danger  of  modern  societies, 
is  the  startling  contrast  between  their  political  and 


8  SOCIAL   JUSTICE 

economic  development.  In  politics,  equality;  in  eco- 
nomics, subordination.  One  man,  one  vote  ;  why  not 
also  one  man,  one  wage  ?  This  contrast,  which  must 
be  brought  home  to  the  dullest  at  election  time,  is  full 
of  social  unsettlement,  and  is  quite  sufficient  to  account 
for  the  unrest  characteristic  of  our  day.  How  different 
was  the  inner  harmony  of  the  system  of  the  Middle 
Age,  where  the  economic  order  found  its  parallel  in 
the  political  order,  and  was  even  reflected  in  the 
spiritual  order,  and  projected  in  the  conception  of 
another  world.  The  mediaeval  conditions  resulted  in 
a  long  period  of  organic  and  stable  society;  the 
modern  mark  an  age  of  transition,  perhaps  of  revo- 
lution." 

This  mediaeval  harmony  has  so  strongly  appealed 
to  some  minds  that  a  return  to  it  has  been  declared 
by  them  desirable  and  even  practical.  In  the  systems 
of  such  thinkers  as  de  Maistre,  of  Comte,  and  of  Car- 
lyle,  ecclesiastical  and  feudal  hierarchies  play  a  prom- 
inent part.  That  such  a  return  would  be  undesirable 
we  need  not  argue  ;  but  whether  desirable  or  not,  time 
may  be  taken  to  point  out  that  the  strivings  of  the 
present  age  nowhere  point  to  a  desire  for  the  reestab- 
lishment  of  past  conditions.  The  whole  modern  spirit, 
whether  voiced  by  the  discontented  or  the  contented, 
is  fundamentally  opposed  to  the  mediaeval  idea, — op- 
posed spiritually,  intellectually,  politically,  and  eco- 
nomically. Spiritually,  the  mediaeval  idea  was  one  of 
separation  of  Church  and  State,  of  contrast  between 
matters  ecclesiastical  and  secular,  of  antagonism 
between  flesh  and  spirit.     The  Christian  religion  as 


INTKODUCTORY  9 

taught  was  generally  non-social  in  spirit,  and  often 
openly  anti-social.  To  all  this  the  modern  spirit  is 
antithetical.  According  to  it  the  good  life  is  to  be 
led,  not  by  an  ascetic  withdrawal  from  social  con- 
ditions and  obligations,  nor  by  walking  with  the  eyes 
ever  directed  to  the  world  to  come,  but  by  entering 
to  the  fullest  possible  degree  into  this  life,  here  and 
now,  and  by  utilizing  the  social  and  political  forces 
by  which  one  is  surrounded  for  the  concrete  realiza- 
tion of  the  highest  ideal  which  the  individual  reason 
is  able  to  suggest.  Intellectually  and  politically  the 
mediaeval  and  the  modern  minds  are  poles  apart.  In 
the  one,  the  dominant  principle  was  authority;  in 
the  other,  it  is  freedom.  At  first  thought,  individual 
freedom  seems  to  involve  moral  and  political  anarchy. 
This  is  what  de  Maistre  and  Comte  thought,  and  they 
believed  that  the  French  Revolution  had  demon- 
strated it.  It  is  for  this  reason  that  they  would 
have  restored  that  division  between  spiritual  and 
temporal  authorities  which  existed  in  the  Middle 
Ages.  But  the  idea  of  freedom  which  the  Protestant 
movement  introduced  has  within  it,  when  properly 
interpreted,  the  principle  of  order  as  well  as  the 
element  of  destruction.^  Economically,  aside  from 
the  greater  diversity  and  complexity  of  present  con- 
ditions, the  great  distinction  between  modern  and 
mediaeval  industrial  life  consists,  of  course,  in  the 
difference  between  production  on  the  large  and  on 
the  small  scale ;  between  the  factory  system  and  the 

1  For  a  fuller  treatment  of  this  subject,  see  Chapter  VII,  "  The 
Right  of  Coercion." 


10  SOCIAL   JUSTICE 

domestic  workshop.    The  hnpossibility  of  a  reversion 
to  the  older  regime  in  these  respects  is  manifest. 

No,  the  demand  of  the  discontented  of  the  present 
age  is  not  for  a  return  of  the  conditions  of  any 
former  time.  The  feeling  rather  is  that,  taking 
conditions  as  they  are,  the  distribution  of  rewards, 
economic  or  other,  which  actually  obtains  should  be 
modified  so  as  to  accord  more  nearly  with  current 
conceptions  of  fairness  and  right.  As  long  as  this 
feeling  prevails,  the  stability  of  our  social  and  eco- 
nomic order  cannot  be  guaranteed.  Reforms  that 
ameliorate  the  conditions  of  the  more  unfortunate 
classes  may  prevent  acute  trouble,  but,  until  the  peo- 
ple generally  are  able  to  see  at  least  a  substantial 
realization  of  the  principles  which  they  believe  to  be 
just,  there  cannot  be  obtained  that  harmony  between 
popular  thought  and  objective  institutions  upon  which 
a  permanent  social  order  must  rest.  It  is  to  be  em- 
phasized, moreover,  that  this  harmony  can  only  be 
obtained  by  satisfying  current  conceptions  of  right, 
in  so  far  as  they  are  essentially  valid.  It  well 
behooves  the  social  reformer,  therefore,  to  consider 
carefully  which  of  the  popularly  alleged  canons  of 
distributive  justice  have  in  them  the  elements  of 
truth  and  rationality.  In  so  far  as  they  are  found 
valid,  the  way  will  be  pointed  out  for  reforms  that 
will  be  permanently  effective.  In  so  far  as  they  are 
found  invalid,  not  only  will  warning  be  given  to 
those  who  might  be  tempted  to  ill-advised  innovations, 
but  the  directions  indicated  along  which  the  economic 
and  ethical  education  of  the  people  must  proceed. 


rNTRODTJCTORY  11 

The  general  character  of  the  inquiry  which  we 
are  to  undertake  has  been  suggested  in  the  preced- 
ing paragraphs.  Its  form  and  scope  may  be  more 
particularly  indicated  as  follows  :  — 

The  second  chapter  will  be  devoted  to  an  analysis 
of  the  idea  of  Justice  as  an  abstract  conception. 
This  principle  determined,  we  shall,  in  the  subse- 
quent chapters,  apply  it  to  the  concrete  problems  of 
our  social  life.  There  is,  or  should  be,  an  ethical 
justification  for  every  social  fact,  but  to  attempt 
specific  justifications  will  be  obviously  impossible. 
It  will  be  possible,  however,  to  examine  those  fea- 
tures of  our  industrial  and  political  life  which  are 
distinguished,  either  by  their  paramount  importance, 
or  by  the  ethical  controversies  that  have  been  waged 
around  them.  In  so  doing  we  shall,  moreover,  be 
rendering  more  explicit  the  principles  in  accordance 
with  which  all  other  and  less  important  social  facts 
are  to  be  judged. 

In  mapping  out  this  work,  it  becomes  evident  that 
the  problem  of  social  justice  may  be  grouped  under 
two  general  heads  :  the  proper  distribution  of  eco- 
nomic goods ;  and  the  harmonizing  of  the  principles 
of  liberty  and  law,  of  freedom  and  coercion. 

Examining  first  the  subject  of  distributive  justice, 
we  shall  consider  the  extent  to  which  the  principle 
of  Equality  should  play  a  part.  Next  we  shall 
undertake  the  definition  of  the  concept  "  Property," 
which  will  involve  a  critical  examination  of  the 
various  theories  that  have  been  brought  forward  to 
justify  its  existence.     This  done,  we  shall  be  ready 


12  SOCIAL   JUSTICE 

to  consider  the  general  canons  of  desert  that  should 
govern  distribution  of  rewards.  The  chief  theory 
considered  under  this  head  will  be  that  which  bases 
the  right  to  private  ownership  wholly  upon  labor 
performed.  As  a  subdivision  to  this  inquiry,  but, 
because  of  its  importance,  demanding  treatment  in  a 
special  chapter,  will  be  the  right  to  private  property 
in  land.  The  other  and  less  important  canons  of 
distributive  justice  will  be  treated  in  still  another 
chapter. 

The  second  of  the  chief  problems  of  which  we 
have  spoken  above,  the  harmonizing  of  freedom 
and  coercion,  will  be  treated  under  the  three  heads, 
"  The  Right  of  Coercion,"  "  The  Ethics  of  the  Com- 
petitive Process,"  and  "Punitive  Justice." 


CHAPTER  II 

JUSTICE 

There  is  one  problem  which,  by  its  importance, 
dwarfs  all  other  subjects  of  human  inquiry;  one 
principle  which,  if  discovered  and  reduced  to  definite 
statement,  will  furnish  the  key  to  unlock  the  doors 
which  have  hitherto  barred  the  way  to  the  solution 
of  the  greatest  questions  that  have  agitated  the 
minds  of  men  in  their  efforts  to  adjust  their  social 
conduct  to  the  highest  standards  of  right.  This 
problem  is  the  determination  of  the  true  canon  or 
canons  of  distributive  justice. 

As  soon  as  the  sense  of  moral  obligation  is  felt, 
the  idea  of  desert  necessarily  makes  its  appearance, 
and  with  the  emergence  of  this  idea  comes  the  need 
for  standards  in  accordance  with  which  individual 
merit  may  be  measured.  In  the  earliest  stages  of 
religious  development  this  need  was  not  strongly 
felt.  Still,  the  need  was  there,  and  to  some  extent 
consciously  recognized.  As  regards  the  relations  of 
men  and  the  gods  the  authority  expressed  by  the  lat- 
ter, though  often  viewed  as  arbitrary  in  the  extreme, 
was  yet  held  to  be  determined  in  the  main  by  the 
merit  of  those  ruled.  As  regards  the  relations 
between  man  and  man,  the  arbitrary  element,  at 
least   from   the  modern   standpoint,  seems   to  have 

13 


14  SOCIAL,  JUSTICE 

entered.  Existing  institutions  and  conditions,  politi- 
cal as  well  as  economic,  if  not  given  in  these  earlier 
times  an  explicit  sacrosanct  character,  were  at  least 
seldom  subjected  to  critical  examination  as  to  their 
social  value.  Tradition,  the  commands  of  the 
priesthood,  or  the  orders  of  the  ruling  political 
classes  were  accepted  as  necessarily  obligatory ;  and, 
though  there  may  have  been  occasional  bewailings 
of  lot,  little  attempt  was  made  to  ascribe  economic 
or  political  hardships  to  the  operation  of  wrong  prin- 
ciples of  distributive  justice. 

As  intellectual  development  advanced,  however, 
men  began  to  reflect  more  seriously  regarding  them- 
selves, and  the  nature  of  the  world  in  which  they  lived 
and  the  forces  by  which  they  were  surrounded.  At 
first  this  inquiry  went  little  farther  than  an  attempt 
to  explain  the  purely  phenomenal  world,  and  resulted 
only  in  the  formulation  of  crude  and  fantastic  cos- 
mologies. Thus  philosophy,  in  its  metaphysical 
sense,  took  its  rise.  Next,  however,  extending  their 
inquiry  to  themselves  as  living,  thinking  beings,  men 
attempted  to  seek  out,  in  a  speculative  way,  the 
meaning  of  life,  and  to  analyze  their  relations  toward 
one  another  and  the  cosmos.  Examining  actual 
social  and  political  conditions,  a  quo  warranto  was 
demanded  of  them.  Thus  ethical  philosophy  began. 
This  stage  of  thought  was  reached  in  Greece  in  the 
Sophistic  period.  By  the  Sophists,  the  so-called 
teachers  of  wisdom,  all  currently  accepted  rules  of 
morality  were  fearlessly  examined,  and  declared 
founded  upon  no   general  principles  of  right.'     In- 


JUSTICE  15 

dividual  interest  and  individual  caprice,  it  was 
asserted,  furnished  the  sole  foundations  for  existing 
moral  and  legal  conventions.  Guided  by  such  teach- 
ings, the  social  and  political  bonds  of  Greece  seemed 
upon  the  point  of  dissolving.  In  this  desperate  con- 
dition of  affairs  Socrates  came  forward  with  his  keen 
dialectics  to  teach  the  doctrine  that  beneath  all  laws 
and  customs,  despite  their  variety  and  apparent  con- 
trariety, general  rules  of  morality  are  to  be  found  of 
so  abstract  and  refined  a  character  as  to  be  capable 
of  universal  application,  and  of  such  essential  ration- 
ality as  to  be  intrinsically  obligatory  upon  men  as 
intelligent  beings.  His  doctrine,  in  other  words, 
was  that,  though  there  would  appear  to  be  inconsist- 
encies in  the  rules  governing  the  same  subjects  at 
different  times  or  at  different  places,  beneath  these 
inconsistences  there  may  be  discovered  common 
moral  elements,  which  give  to  the  rules  their  ethical 
validity  in  so  far  as  they  have  validity  at  all.  Thus 
was  made  the  first  deliberate  attempt  to  seek  out  the 
pure  principles  of  practical  morality.  It  is  true  that 
Socrates'  own  work  went  little  beyond  showing  the 
inconsistences  of  current  Sophistic  assertions,  yet  the 
doctrine  which  we  have  mentioned  was  there,  and 
the  positive  side  of  the  work  which  Socrates  had 
begun  was  immediately  taken  up  by  his  great  pupil 
Plato,  and  continued  in  turn  by  the  still  greater 
Aristotle.  From  Aristotle's  time  to  the  present  day 
speculative  spirits,  one  after  another,  have  continued 
this  search  for  the  canons  of  right  and  justice. 

The  existence  of  eternal,  immutable  canons  of  con- 


16  SOCIAL  JUSTICE 

duct  being  granted,  philosophers  and  ethicists  have 
confidently  attacked  the  problem  of  definitely  deter- 
mining, b}^  pure  reasoning,  the  prescriptions  which 
they  give.  To  these  prescriptions  has  generally  been 
given  the  name  "  natural  laws."  By  their  essential 
rationality  these  laws  have  been  held  to  be  binding 
at  all  times,  in  all  places,  and  upon  all  men.  As 
such  they  have  of  course  been  considered  as  control- 
ling political  rulers,  and,  conversely,  as  securing  to 
the  individual  rights  for  the  violation  of  which  no 
justification  may  be  offered. 

During  the  long  centuries  of  the  Dark  Ages  little 
was  added  to  the  contributions  which  the  Greeks  had 
made  to  the  world's  stock  of  philosophic  knowledge. 
Indeed,  much  that  had  been  discovered  disappeared 
from  the  learning  of  Europe.  Fragments  only  of 
the  writings  of  Aristotle  and  Plato  were  known,  and 
these  for  the  most  part  in  corrupt  translations.  All 
philosophy  became  dominated  by  the  theological 
spirit,  and  thus  the  Natural  Law,  which  to  the 
Greeks  had  been  interpreted  as  the  commands  of 
Great  Nature  —  Natura  Naturans  —  became,  at  the 
hands  of  the  churchmen,  the  Laws  of  God.  During 
the  scholastic  period,  however,  though  nothing  was 
added  in  substance,  much  was  gained  in  definiteness. 
The  various  conceptions  involved  in  the  moral  philos- 
ophies of  the  heathen  and  Church  writers  were  sub- 
jected to  that  keen  analysis  which  the  schoolman's 
sharpened  dialectical  skill  rendered  possible.  This 
analysis  culminated  in  the  system  of  Thomas 
Aquinas,  in  which   the   lex  mterna,  lex  humana,  lex 


JUSTICE  17 

divina,  and  lex  naturalis  were  sharply  and  logically 
distinguished. 

From  the  time  of  Aquinas  to  that  of  Kant  is  a 
long  step,  five  hundred  years,  in  fact,  yet  during  all 
that  time  there  was  no  change  in  the  currently  re- 
ceived doctrines  of  natural  right  which,  for  our 
present  purposes,  need  be  considered.  During  the 
seventeenth  and  eighteenth  centuries,  however,  the 
idea  of  which  we  have  spoken  above,  that  it  lies 
within  the  power  of  men  definitely  to  determine  and 
state  each  of  the  special  duties  which  the  ethical 
law  commands,  became  more  pronounced.  It  was 
declared  with  increasing  emphasis  that,  starting  with 
a  few  axiomatic  principles,  it  is  possible  to  determine, 
more  geometrico,  all  of  the  special  obligations  under 
which  men,  as  moral  beings,  rest.  This,  for  instance, 
was  the  view  maintained  by  Locke,  Spinoza,  and 
Wolff.  Thus  Locke,  starting  with  "the  idea  of  a 
Supreme  Being  infinite  in  power,  goodness,  and  wis- 
dom, whose  workmanship  we  are,  and  on  whom  we 
depend ;  and  the  idea  of  ourselves  as  understanding, 
rational  beings,"  declares  that  "from  [these]  self- 
evident  propositions  by  necessary  consequences  as 
incontestable  as  those  in  mathematics,  the  measures 
of  right  and  wrong  might  be  made  out  to  any  one 
that  will  apply  himself  with  the  same  indifference 
and  attention  to  the  one  as  he  does  to  the  other 
of  these  sciences."  ^  Spinoza  went  so  far  as  to  cast 
his  ethics  in  the  geometrical  form  of  propositions, 
demonstrations,  and  corollaries. 

1  Cf .  Schurman,  Ethical  Import  of  Darwinism,  Chapter  I. 
c 


18  SOCIAL   JUSTICE 

It  was  as  much,  these  absurd  pretensions  as  it  was 
the  sceptical  results  of  Hume's  reasoning,  that  awoke 
the  philosopher  of  Konigsberg  from  his  "  dogmatic 
slumber."  Negatively  the  result  of  Kant's  work  was 
to  show  the  utter  lack  in  the  ethical  systems  of  his 
time  of  a  metaphysic  or  epistemology  adequate  for 
the  support  of  the  premises  upon  which  they  were 
founded.  Positively,  the  result  was  to  transfer  to 
the  individual  human  reason  the  legislative  source 
of  moral  law.  The  significance  of  Kant's  doctrine 
in  this  respect  has  been  brilliantly  stated  by  Sal- 
mond.^  "  In  the  system  of  Kant,"  says  Mr.  Sal- 
mond,  "the  law  of  nature,  or,  as  he  prefers  to  call 
it,  the  moral  law,  appears  as  the  categorical  impera- 
tive of  the  practical  reason.  It  is  not  difficult  to 
recognize  under  this  new  disguise  the  conception 
already  familiar  to  us.  Law,  for  Kant,  as  for  every 
one  else,  is  a  command ;  but  he  expresses  this  in  his 
own  way  by  saying  that  it  is  a  '  proposition  which 
contains  a  categorical  imperative.'  That  the  law 
of  nature  is  a  command  or  dictate  of  reason  was 
already  familiar  doctrine  in  the  time  of  Cicero ; 
Aquinas  and  the  schoolmen  taught  it,  and  from  their 
day  to  that  of  Kant  himself,  it  has  not  been  rejected 
or  forgotten.  .  .  .  The  element  of  originality  in 
Kant's  system  is  his  unreserved  acceptance  of  what 
is  called  the  metaphysical  doctrine  of  natural  law. 
When  Aquinas  says  that  this  law  is  the  dictate  of 
practical  reason,  he  means  primarily  the  reason  of 

^  In  an  article  entitled  "  The  Law  of  Nature,"  contributed  to  the 
Law  Quarterly  Review  for  April,  1895. 


JUSTICE  19 

God,  not  of  man  —  ratio  videlicet  gubernativa  totius 
universi  in  mente  divina  existens.  Human  reason  is 
not  per  se  possessed  of  legislative  authority,  but  is 
merely  the  secondary  source  of  the  law  of  nature,  as 
being  the  means  by  which  law  is  revealed  to  man. 
Kant,  however,  proclaims  a  new  doctrine  of  the 
autonomy  of  the  reason  or  rational  will  of  man. 
The  human  practical  reason  is  a  lawgiving  faculty, 
and  its  commands  constitute  the  moral  law.  *  This 
law,'  he  says,  ^ ...  is  a  single  isolated  fact  of  the 
practical  reason  announcing  itself  as  originally  legis- 
lative.' Sic  volo  sic  juheo.  Reason  is  spontaneously 
practical  and  gives  that  universal  law  which  is  called 
the  moral  law.  From  this  moral  or  natural  law 
proceeds  moral  or  natural  obligation,  as  most  of  his 
predecessors  taught.  '  Obligation  is  the  necessity  of 
free  action  when  viewed  in  a  relation  to  a  categorical 
imperative  of  reason.'  " 

It  must  not  be  gathered,  however,  from  the  above 
that  Kant  taught  a  doctrine  according  to  which  it 
lies  within  the  power  of  each  individual  to  create 
arbitrary  distinctions  between  right  and  wrong.  His 
theory  is  that  what  our  reason  tells  us  is  right  be- 
comes, ipso  facto,  categorically  imperative  upon  us. 
But  in  reaching  its  judgments  our  reason  is,  by  its 
very  nature,  governed  by  the  principle  that  only  that 
can  be  right  which  accords  with  a  principle  which 
we  can  wish  to  be  a  universal  one.  "  Act  on  a 
maxim,"  he  declares,  "  which  thou  canst  will  to  be 
a  universal  law." 

The  effect  of  Kant's  writings  was  to  inaugurate  an 


20  SOCIAL  JUSTICE 

epoch  in  ethical  speculation.  As  modified  and  elab- 
orated by  the  later  transcendentalists,  the  result  has 
been  to  give  to  the  conception  of  natural  rights  a 
changed  and  more  nearly  perfect  signification.  All 
ethical  obligation  being  posited  upon  that  feeling  of 
oughtness  which  is  given  to  the  individual  as  an  orig- 
inal datum  of  consciousness  when  the  rightness  of  a 
given  line  of  conduct  is  recognized,  and  all  rules  of 
moral  obligation  being  thus  considered  as  having  their 
source  in  the  legislative  power  of  the  human  mind 
to  set  to  itself  principles  of  conduct,  the  idea  of 
natural  right  necessarily  becomes  synonymous  with 
those  claims  which  the  individual,  as  a  rational  moral 
being,  may  claim  from  others  as  rational  moral  beings. 
/'As  thus  conceived,  the  only  rights  which  may  be 
j  claimed  as  natural,  in  the  sense  of  being  innate  or 
i  essential,  are  those  which  are  necessary  for  the  reali- 
zation of  one's  highest  ethical  self.  Thus,  as  Green 
says,  "  they  [rights]  are  '  innate  '  or  '  natural '  in  the 
same  sense  in  which  according  to  Aristotle  the  state 
is  natural ;  not  in  the  sense  that  they  actually  exist 
when  a  man  is  born,  and  that  they  have  actually 
existed  as  long  as  the  human  race,  but  that  they 
arise  out  of,  and  are  necessary  for  the  fulfilment  of, 
a  moral  capacity  without  which  a  man  would  not  be 
a  man."i 

Justice  to  the  individual,  then,  must,  according 
to  these  principles,  consist  in  the  rendering  to  him, 
so  far  as  possible,  all  those  services,  and  surrounding 
him  by  all  those  conditions,  which  he  requires  for 

1  Philosophical  Works,  Vol.  II,  p.  353. 


JUSTICE  21 

his  highest  self,  for  the  satisfaction  of  those  desires 
which  his  truest  judgment  tells  him  are  good.  Con- 
versely, opportunity  for  the  fulfilment  of  highest 
aims  is  all  that  may  be  justly  claimed  as  a  right. 

The  realization  of  one's  ethical  self  is  the  gen- 
eral categorical  imperative  addressed  to  every  one. 
Therefore,  the  putting  forward  of  a  claim  implies 
at  the  same  time  the  recognition  of  a  duty  by  the 
individual  making  the  claim.  In  the  legal  world 
the  existence  of  a  right  in  an  individual  is  said  to 
imply  the  corresponding  duty  in  others  to  respect 
that  right.  In  the  moral  world,  however,  not  only 
is  there  this  obligation,  but  there  is  incumbent  upon 
the  subject  of  the  right  the  duty  of  employing  it, 
when  obtained,  for  the  attainment  of  the  end  for 
which  alone  it  is  granted  to  exist.^  Further  still,  the 
setting  up  by  an  individual  of  a  claim  for  a  given 
privilege  or  immunity  logically  implies  the  assertion 
by  such  individual  that  he  has  both  the  disposition 
and  the  ability  properly  to  use  it  when  obtained. 

But  what  does  the  above  mean  ?  It  means,  in  the 
first  place,  that  the  "  rights  "  which  different  indi- 
viduals may  claim  are  not  necessarily  the  same.  It 
means,  in  the  second  place,  that  there  are  no  absolute 
rights,  no  definite  natural  rights,  such  as  those  that 
so    many    political    and    ethical    philosophers    have 

^  Also,  as  Mackenzie  points  out  (^International  Journal  of  Ethics, 
Vol.  IV,  p.  425),  "  there  could  not  be  any  .  .  .  legal  right  if  there 
were  not  a  presupposition  that,  on  the  average,  the  individual  will  use 
it  -well."  Thus,  for  instance,  the  right  of  freely  expressing  one's  opin- 
ions can  be  tolerated  only  when  men  have  reached  a  certain  level  of 
reasonableness  in  the  formation  of  their  views. 


22  SOCIAL  JUSTICE 

attempted  to  declare.  The  rights  which  different 
individuals  may  properly  claim  must  vary  according 
to  their  ethical  dispositions  and  capacities.  Thus 
the  man  who,  by  his  strivmg,  has  built  up  for  him- 
self an  upright  character,  has  the  right  to  demand 
from  his  fellow-men  a  respect  to  which  his  less  hon- 
est neighbor  can  make  no  proper  claim.  Thus,  also, 
that  man  who,  by  his  wisdom  and  probity,  is  best  qual- 
ified to  direct  a  certain  social  force  has  ethically  the 
best  right  to  be  intrusted  with  its  control.  In  this 
sense  there  is  a  '"'  divine  right"  of  rulership. 

There  can  be  no  absolute  rights,  furthermore,  for 
the  reason  that  whether  or  not  a  given  right  should 
be  granted  must  depend  upon  all  the  concomitant 
circumstances  which  determine  whether  or  not  the 
special  aim  sought  to  be  realized  by  the  employment 
of  the  right  claimed  is  the  most  desirable  end  which, 
under  the  given  conditions,  should  be  sought.  Finally, 
even  were  the  foregoing  not  true,  it  would  be  logically 
impossible  to  maintain  the  existence  of  more  than  a 
single  absolute  right.  To  say  that  any  right  is  abso- 
lute means  that  it  is  one  which,  under  all  conceivable 
circumstances,  should  be  granted  to  all  individuals, 
qua  persons,  whatever  their  capacity  for  ethical  de- 
velopment. To  select  any  one  right  as  absolute, 
means,  then,  that  every  other  right  must  always  be 
subordinated  to  it.  Thus,  for  example,  if  the  right 
to  life  be  selected  as  absolute,  no  justification  for  its 
violation  can  be  offered,  whether  for  the  sake  of  the 
protection  of  one's  own  self  from  grievous  bodily 
injury,  or  for  the  warding  off  of  similar  injury  to 


jtrsTiCE  23 

one's  own  family.  No  injury  to  one's  honor,  or  the 
honor  of  one's  own  family,  will  justify  its  violation. 
According  to  such  a  premise,  life  could  never  justly 
be  taken  or  exposed  to  serious  danger  in  war, 
however  righteous  the  cause  for  which  waged. 
In  fact,  no  threatened  evil  to  thousands  or  millions 
of  other  men,  short  possibly  of  what  would  entail 
death,  would  justify  the  taking  of  a  single  life.  To 
state  such  logical  consequences  as  these  is  a  sufficient 
answer  to  those  who  would  maintain  the  possibility 
of  an  absolute  right,  even  did  not  the  reasoning 
which  has  gone  before  show  its  impossibility. 

So  important  is  this  point  of  the  relativity  of  all 
rights  that,  though  it  be  a  repetition,  a  quotation 
from  Green's  Prolegomena  to  Ethics  is  justified. 
"  We  need  not  shrink,"  says  Green,  "  from  asserting 
as  the  basis  of  morality  an  unconditional  duty, 
which  yet  is  not  a  duty  to  do  anything  uncondi- 
tionally except  to  fulfil  that  unconditional  duty.  .  .  . 
This  is  the  unconditional  ground  of  those  particular 
duties  to  do  or  to  forbear  doing,  which,  in  the  effort 
of  the  social  man  to  realize  his  ideal,  have  so  far 
come  to  be  recognized  as  binding,  but  which  are  in 
some  way  or  other  conditional,  because  relative  to 
particular  circumstances,  however  wide  the  range  of 
circumstances  may  be,  to  which  they  are  relative.  .  .  . 
Every  one  ...  of  the  duties  which  the  law  of  the 
State  or  the  law  of  opinion  recognizes  must  in 
some  way  be  relative  to  circumstances.  .  .  .  Yet 
there  is  a  true  sense  in  which  the  whole  system  of 
such  duties  is  unconditionally  binding.     It  is  so  as 


24  SOCIAL  JUSTICE 

an  absolute  imperative  to  seek  the  absolutely  desir- 
able, the  ideal  of  humanity,  the  fulfilment  of  man's 
vocation.  ...  It  enjoins  the  observance  of  the 
whole  complex  of  established  duties,  as  a  means  to 
that  perfection  of  which  it  unconditionally  enjoins 
the  pursuit.  And  it  enjoins  this  observance  as  un- 
conditionally as  it  enjoins  the  pursuit  of  the  end  to 
which  this  observance  is  a  means,  so  long  as  it  is  such 
a  means.  It  will  only  allow  such  a  departure  from 
it  in  the  interest  of  a  fuller  attainment  of  the  uncon- 
ditional end,  not  in  the  interest  of  any  one's  pleasure."  ^ 

Let  us  stop  now  to  sum  up  the  results  thus  far 
reached  regarding  the  nature  of  justice.  Negatively, 
we  have  determined  that  there  are  no  such  things  as 
definite,  absolute  rights.  .Positively,  we  have  learned 
that  justice  consists  in  granting,  so  far  as  possible, 
to  each  individual  the  opportunity  for  a  realization  of 
his  highest  ethical  self,  and  that  this  involves,  or 
rather  is  founded  upon,  ,the  general  duty  of  all,  in 
the  pursuit  of  their  own  ends,  to  recognize  others  as 
individuals  who  are  striving  for,  and  have  a  right 
to  strive  for,  the  realization  of  their  own  ends.  In 
other  words,  there  is  the  general  ethical  mandate  to 
be  a  person,  and  to  respect  others  as  persons ;  to 
treat  others  as  ends,  never  as  mere  means  to  one's 
own  end. 

These  conclusions  to  which  we  have  been  led  have 
been  reached  deductively.  In  the  chapters  which 
are  to  follow,  we  shall  examine  the  chief  of  those 
attempts  which  have  been  made  to  declare  rules  of 

1  §§  197,  198. 


JUSTICE  25 

justice  of  the  absolute  character  that  we  have  de- 
clared to  be  impossible.  If,  as  a  result  of  such  ex- 
amination, we  should  discover  that  no  one  of  them 
can  be  successfully  defended  as  absolutely  valid,  i.e. 
as  valid  under  all  conceivable  circumstances  and 
conditions,  then  truly  we  shall  feel  that  there  has 
been  afforded  substantial  support  for  the  position 
which  we  have  already  assumed  upon  this  point. 
For  if,  after  the  expenditure  of  all  the  intellectual 
effort  that  has  been  made  in  the  past  by  the  wisest 
men  of  their  times  to  ascertain  such  rules,  no  laws 
of  justice  have  been  discovered  which  may  be  univer- 
sally and  rigidly  applied  without  leading  to  unde- 
sirable and  unjust  results,  certainly  a  presumptive 
proof  is  offered  that  no  such  laws  can  be  framed. 
And  this  will  give  us  a  confidence  in  assuming  that 
our  general  reasoning  has  not  been  vitiated  by  any 
important  error. 

Is  this,  however,  we  are  forced  to  ask,  the  most 
definite  formulation  of  which  the  idea  of  justice  is 
susceptible  ?  By  the  side  of  those  ethical  systems 
which  have  claimed  to  lay  down  for  our  guidance 
concrete  rules  of  conduct,  or  at  least  definite  criteria 
of  the  goodness  or  badness  of  different  modes  of  con- 
duct, it  does  certainly  seem  unsatisfactory  to  be  in- 
formed that  no  definite  rules  of  absolute  validity  can 
be  laid  down ;  that  only  the  general  advice  can  be 
given  to  seek  the  nearest  possible  realization  of  the 
highest  possible  personal  perfection.  Our  personal 
and  social  necessities  compel  us  to  ask.  Can  we  not 
rationally  deduce  some  guiding  principles  of  conduct, 


26  SOCIAL  JUSTICE 

some  definite  maxims  which  will  enable  us  to  test 
the  justice  of  social  institutions  and  forces,  and 
which  will  afford  us  at  least  the  clews  for  determin- 
ing the  privileges  and  immunities  which  an  indi- 
vidual may  justly  claim  from  society  ?  If  our 
inquiries  are  necessarily  to  end  in  a  general  no7i 
possumus,  what,  we  are  tempted  to  ask,  is  the  value 
of  an  attempt  to  seek  practical  guidance  in  the 
ethical  field?  It  is  the  positive  results  we  most 
desire,  and  to  what  positive  results  can  such  an 
inquiry  lead  ? 

The  positive  results  will  be  these.  In  the  first 
place,  in  demonstrating  the  impossibility  of  framing 
absolute  rules  of  justice,  the  necessity  will  be  em- 
phasized of  bringing  each  of  our  acts  to  the  bar  of 
reason,  and  of  determining  in  each  case,  not  simply 
its  formal  accordance  or  non-accordance  with  some 
previously  accepted  rule  of  conduct,  but  whether, 
as  a  matter  of  fact,  both  the  ethical  motive  which 
prompts  its  performance  is  a  proper  one,  and  its 
ultimate  as  well  as  proximate  results  will  be  such  as 
will  tend  to  advance  the  realization  of  the  highest 
good  which  our  reason  has  been  able  to  suggest. 
With  no  thumb  rules  to  guide  us,  we  will  be  thus 
taught  that  what  is  right  and  what  is  wrong  for  us 
as  members  of  a  society  can  be  determined  only  after 
we  have  ascertained  all  the  circumstances  which 
have  led  to  a  given  state  of  affairs,  as  well  as  the 
conditions  by  which  a  given  line  of  conduct  is  to  be 
influenced  in  the  future.  This  will  mean  that  at  least 
a  certain  amount  of  study  of  actual  social  conditions 


JUSTICE  27 

is  imperative  upon  every  one,  and  especially  upon 
those  who  would  seek  to  teach  or  guide  others.  The 
study  of  the  social  sciences  will  thus  be  shown  to  be, 
as  it  were,  a  propaedeutic  to  the  science  of  right 
living. 

Secondly,  the  impossibility  of  formulating  absolute 
rules  of  practical  morality  will  not  prevent  us  from 
discovering  and  stating  those  general  considerations 
which  an  intelligent  acquaintance  with  the  social 
conditions  of  any  one  time  or  place  suggests  as  having 
a  bearing  upon  concrete  lines  of  conduct.  Ethics  as 
an  art  is  not  bound  by  the  limitations  which  surround 
it  as  a  science  or  philosophy.  As  a  science  or  phi- 
losophy any  body  of  knowledge,  in  order  to  be  at  all 
valuable,  must  be  absolute,  certain.  As  an  art,  how- 
ever, any  information  is  of  value.  Thus,  after  a 
careful  examination  of  all  the  qualifying  circum- 
stances in  a  given  case,  we  may  state  for  the  guid- 
ance of  others  those  rules  of  right  which  it  seems  to 
us  will,  upon  the  whole,  produce  the  greatest  aggre- 
gate of  justice.  In  this  way  we  shall  be  able  to 
justify  the  existence  of  a  positive  law  and  to  advo- 
cate its  operation  under  existing  conditions  because 
we  think  its  effects  as  a  whole  are  for  good.  At  the 
same  time  we  may  fully  recognize  that  at  times  the 
operation  of  the  law  will  be  unjust,  and  clearly  see 
that  under  other  conditions  a  more  nearly  perfect 
rule  might  be  applied. 

Finally,  it  may  be  pointed  out  that,  though  our 
examination  leads  to  a  declaration  that  there  cannot 
be  definitely  formulated  any  absolutely  valid  rules 


28  SOCIAL  JUSTICE 

of  justice,  it  is  of  great  importance  that  we 
should  demonstrate  this  fact,  for  by  so  doing  we 
deprive  dangerous  revolutionary  and  socialistic 
schemes  of  the  ethical  support  that  is  claimed  for 
them. 


CHAPTER   III 

EQUALITY 

The  idea  of  desert  implies  that  of  impartiality. 
Impartiality,  it  should  be  noted,  is  distinct  from  that 
of  equality.  It  requires  merely  that  where  favor  is 
shown,  some  sound  reason  should  exist  for  doing  so. 
As  Mill  says,  "  Impartiality  as  an  obligation  of  jus- 
tice may  be  said  to  mean  being  exclusively  influenced 
by  considerations  which  it  is  supposed  ought  to  m- 
fluence  the  particular  case  in  hand,  and  resisting 
the  solicitation  of  any  motives  which  prompt  to  con- 
duct different  from  what  these  considerations  would 
dictate."  ^  The  exclusion  of  preferences  based  on 
irrelevant  considerations  does,  indeed,  often  lead  to 
an  equality  of  treatment,  but  this  is  an  accidental 
result,  not  a  necessary  consequence.  Therefore,  to 
repeat,  in  admitting  the  idea  of  impartiality  as  an 
essential  element  in  the  idea  of  justice  we  are  not 
committed  to  any  doctrine  of  equality. 

At  first  thought  it  might  seem  that  a  rigid  appli- 
cation of  this  doctrine  of  impartiality  would  require 
us  to  stigmatize  as  unjust  all  preferences  based  upon 
mere  affection,  that  is,  upon  feelings  of  friendliness  or 
love  which  are  not  wholly  predicated  upon  a  conscious 
estimate  of  worth  in  the  one  for  whom  the  friendli- 

1  Utilitarianism,  Chapter  V. 
29 


30  SOCIAL  JUSTICE 

ness  or  love  is  felt.  It  would  thus  seem  that  the 
mother's  greater  love  for  her  own  than  for  another's 
offspring  would,  in  the  greater  number  of  cases, 
stand  condemned. 

This  point  has  been  seized  upon  and  argued  with 
great  force  by  Godwin  in  his  Political  Justice.  "  In 
a  loose  and  general  way,"  he  says,  "  I  and  my  neigh- 
bor are  both  of  us  men ;  and  of  consequence  entitled 
to  equal  attention.  But  in  reality  it  is  probable  that 
one  of  us  is  a  being  of  more  worth  and  importance 
than  the  other.  A  man  is  of  more  worth  than  a 
beast  because,  being  possessed  of  higher  faculties,  he 
is  capable  of  a  more  refined  and  genuine  happiness. 
In  the  same  manner  the  illustrious  Archbishop  of  Cam- 
bray  was  of  more  worth  than  his  chambermaid,  and 
there  are  few  of  us  that  would  hesitate  to  pronounce, 
if  his  palace  were  in  flames,  and  the  life  of  only  one 
of  them  could  be  preserved,  which  of  the  two  ought 
to  be  preferred.  .  .  .  We  are  not  connected  with  one 
or  two  percipient  beings,  but  with  a  society,  a  nation, 
and  in  some  sense  with  the  whole  family  of  mankind. 
Of  a  consequence  that  life  ought  to  be  preferred  which 
will  be  most  conducive  to  the  general  good.  .  .  . 
Supposing  I  had  been  myself  the  chambermaid,  I 
ought  to  have  chosen  to  die,  rather  than  that  Fenelon 
should  have  died.  .  .  .  Supposing  the  chambermaid 
had  been  my  wife,  my  mother,  or  my  benefactor. 
This  would  not  alter  the  truth  of  the  proposition. 
The  life  of  Fenelon  would  still  be  more  valuable  than 
that  of  the  chambermaid ;  and  justice,  pure,  unadul- 
terated justice,  would  still  have  preferred  that  which 


EQUALITY  31 

was  most  valuable.  .  .  .  What  magic  is  there  in  the 
pronoun  *  my '  to  overturn  the  decisions  of  everlast- 
ing truth  ?  .  .  .  Every  view  of  the  subject  brings  us 
back  to  the  consideration  of  my  neighbor's  moral 
worth  and  his  importance  to  the  general  weal  as  the 
only  standard  to  determine  the  treatment  to  which 
he  is  entitled.  Gratitude,  therefore,  a  principle 
which  has  so  often  been  the  theme  of  the  moralist 
and  poet,  is  no  part  either  of  justice  or  virtue. 
By  gratitude  I  understand  a  sentiment  which  would 
lead  me  to  prefer  one  man  to  another,  from  other 
considerations  than  that  of  his  superior  usefulness  or 
worth :  that  is,  which  would  make  something  true 
io  me  (for  example,  this  preferableness)  which  can- 
not be  true  to  another  man,  and  is  not  true  in 
itself."  1 

There  is  considerable  force  in  the  argument  just 
given,  and  indeed,  when  properly  interpreted,  much 
of  it  may  be  accepted.  The  highest  good,  at  least  as 
men  are  now  constituted,  is,  as  we  shall  show  later 
on,  a  social  one.  For  its  attainment  the  mainten- 
ance of  social  relations  is  necessary  —  so  necessary,  in 
fact,  that  the  individual  is  able  to  find  his  best  self- 
realization  only  when  he  seeks  his  own  good  in  the 
good  of  others  and  of  society  at  large.  We  cannot 
therefore  take  objection  to  the  declaration  of  Godwin 
that  when  the  social  good  seems  so  to  demand,  the 
objects  of  one's  affections  should  be  sacrificed.  But 
here  is  the  vital  point.  When  we  speak  of  the  social 
good,  we  must  conceive  of  that  good  in  its  highest 

1  Book  II,  Chapter  U. 


32  SOCIAL  JUSTICE 

terms.  This  means  the  absolute  abandonment  of 
such  criteria  as  ordinary  utilitarianism  affords,  and 
the  acceptance  of  idealistic  conceptions  in  their  place. 
It  means,  furthermore,  a  holding  in  view  of  the  ulti- 
mate, as  well  as  the  proximate,  results  of  an  act. 
When  these  conditions  are  observed  the  acceptance 
of  Godwin's  formal  law  of  justice,  so  far  from  render- 
ing preference  due  to  affection  or  friendliness  inequi- 
table, upon  the  contrary  affords,  in  the  greater  number 
of  cases,  the  very  highest  sanction  for  their  exercise. 
When,  for  example,  we  consider  that  the  integrity  of 
the  family,  which  is  founded  upon  parental  and  filial 
love,  furnishes  the  surest  basis  of  public  order  and 
morality,  that  within  its  circle  are  aroused  and  stimu- 
lated many  of  the  highest  and  truest  virtues, — when 
we  consider  this,  we  see  at  once  that,  in  the  broadest 
sense  of  justice,  loving  preferences  based  upon  kinship 
are  of  such  transcendent  importance  in  individual  as 
well  as  social  culture,  that  the  distributive  inequali- 
ties to  which  they  may  give  rise  are  of  little  signifi- 
cance. Even  if  justice  be  conceived  as  simply  a 
principle  of  utility,  the  same  is  true,  provided  it  be 
admitted,  as  of  course  it  must  be,  that  a  social  life  is 
of  value  to  men.  For  it  is  within  the  family  and 
friendly  circles  that  are  engendered  and  cultivated 
the  principles  of  conduct  which  render  the  mainten- 
ance of  a  social  life  possible. 

What  has  been  said  as  to  the  preferences  arising 
from  blood  relationships  applies,  mutatis  mutandis,  to 
most  of  the  exhibitions  of  partiality  based  upon  senti- 
ments of  friendliness  and  of  race  and  political  affilia- 


EQUALITY  33 

tions.  Adam  Smith  remarked  the  fact  that  men 
were  more  likely  to  be  moved  by  the  sufferings  of 
their  neighbor  caused  by  a  corn  upon  his  great  toe, 
than  by  the  starvation  of  millions  in  China.  Such 
an  extreme  discrimination  is  of  course  irrational,  and 
therefore  an  injustice.  In  the  aggregate,  however, 
it  is  true  that  partialities  of  neighborhood,  race,  and 
nation  are  of  enormous  value  in  cementing  the  bonds 
which  unite  men  and  women  into  cooperating  units. 
Edmund  Burke  expresses  this  idea  when  he  says  :  "  To 
be  attached  to  the  subdivision,  to  love  the  little  pla- 
toon we  belong  to  in  society,  is  the  first  principle,  the 
germ,  as  it  were,  of  public  affections.  It  is  the  first 
link  in  the  series  by  which  we  proceed  toward  a  love 
of  our  country  and  mankind."  ^  The  millennial  time 
may  come  when  the  brotherhood  of  mankind  will 
have  received  such  full  recognition  that  ethnic  and 
political  bonds  will  lose  much,  if  not  all,  of  their 
present  importance.  As  yet,  however,  their  existence 
would  seem  to  be  needed.  With  the  standard  of 
culture  that  now  generally  prevails,  abstract  love  of 
humanity,  while  lofty  as  an  idea  and  not  difficult  for 
the  ordinary  mind  to  grasp,  is  yet  one  that  can  hardly 
be  relied  upon  to  furnish  an  effective  motive  in  every- 
day life.  Love  of  humanity  may  easily  be  associated 
with  an  indifference  to  men  individually- 

Professor  Mackenzie,  in  his  Introduction  to  Social 


^  Cf .  Leslie  Stephen,  Social  Rights  and  Duties,  Vol.  I,  chapter 
entitled  "  Social  Equality,"  from  which  the  above  quotation  has  been 
taken,  and  which  has  been  suggestive  upon  a  number  of  the  points 
considered  in  this  chapter. 


34  SOCIAL  JUSTICE 

Philosophy,  has  some  admirable  remarks  upon  the 
point  we  have  been  making.  He  introduces  also  the 
caution,  which  we  should  have  stated,  that  the  justi- 
fication of  discriminations  founded  upon  love  or  friend- 
ship does  not  justify  everything  that  may  be  done  in 
their  name.  "  The  unity  which  is  founded  upon  natu- 
ral feeling,"  he  says,  "  must  precede  that  which  de- 
pends upon  acquired  sympathies  and  thoughts.  To 
begin  with  the  love  of  humanity  would  be  to  begin 
with  a  cold  abstraction.  The  family  is  like  a  burning- 
glass  which  concentrates  human  sympathies  on  a  point. 
Within  that  narrow  circle  selfishness  is  gradually 
overcome  and  other  interests  developed.  Each  one 
is  supplied  with  the  opportunity  of  knowing  a  few 
human  beings  thoroughly,  than  which  nothing  is 
more  important  as  a  first  stage  in  the  transcendence 
of  the  merely  individual  self.  One  who  knows  only 
himself  inwardly  and  sees  others  only  by  a  kind  of 
outward  observation,  which  in  a  large  circle  is  an 
almost  inevitable  result,  is  apt  to  become  for  himself 
too  entirely  the  centre  of  his  world,  if,  indeed,  he 
ever  forms  a  world  or  cosmos  for  himself  at  all.  The 
family  enables  a  few  persons  to  become,  not  merely 
objects  for  each  other,  but  parts  of  a  single  life ;  and 
the  unity  thus  effected  may  then  be  very  readily 
extended  as  sympathies  grow.  At  the  same  time,  it 
cannot  be  denied  that  the  family  has  the  danger  of 
all  exclusive  forms  of  association.  The  garden  wall 
hides  the  horizon.  The  selfishness  of  a  family  may 
be  not  less  repellent  than  that  of  an  individual ;  and 
the  former  kind  of  selfishness  is  much  more  insidious 


EQUALITY  35 

of  the  two,  since  the  evil  spirit  is  there  masquerading 
as  an  angel  of  light.  The  cure  for  these  evils,  how- 
ever, is  to  be  found,  not  by  destroying  the  family,  but 
by  treating  it  as  a  preparation  for  a  more  complete 
form  of  union."  ^ 

Admitting  now  the  rightfulness  of  such  preferences 
as  are  necessary  for  the  maintenance  of  the  social 
relationships  of  which  we  have  been  speaking,  we  turn 
to  ask  to  what  extent,  if  any,  the  idea  of  equality 
should,  in  other  respects,  be  recognized  in  our  con- 
ceptions of  distributive  justice.  Before  we  can  do 
this,  however,  it  will  be  necessary  to  distinguish  the 
different  applications  of  which  the  term  "equality"  is 
susceptible.  There  are  six  general  senses  in  which 
we  may  speak  of  equality;  namely,  (1)  Spiritual,  (2) 
Natural,  (3)  Civil,  (4)  Political,  (5)  Social,  (6)  Eco- 
nomic.^ We  shall  consider  each  of  these  in  the 
order  given. 

I.  Spiritual  Equality.  —  This  form  of  equality  refers 
to  men  viewed  as  moral  beings,  as  partakers  in  the 
divine  reason.  Taken  in  this  sense  there  can  be  no 
hesitation  in  accepting  the  abstract  equality  of  all 
men  as  a  statement  of  fact.  By  "  abstract  equality  " 
we  mean  that,  viewed  simply  as  ethical  potentialities, 
all  men  are  equal  before  Him  who  holds  them  in  the 
hollow  of  His  hand.  As  actual  individuals,  however, 
and  as  standing  before  God  as  their  judge,  men  and 
women  must  be  considered  as  entitled  to  recognition 

1  Op.  eit.,  pp.  363-364. 

2  This  is  the  classification  made  by  Mr.  James  Bryce  in  an  article 
entitled  "  Equality  "  in  the  Century  Magazine  for  July,  1888. 


36  SOCIAL  JUSTICE 

according  to  their  ethical  deserts.  Spiritual  equality 
thus  has  reference  simply  to  human  beings  viewed 
as  beings  with  moral  possibilities.  When  the  ques- 
tion of  moral  desert  is  raised,  the  only  obligation  that 
would  seem  to  be  imposed  is  impartiality. 

This  idea  of  the  spiritual  equality  of  all  men  was 
practically  unknown  to  antiquity.  This  appeared 
explicitly  where  a  caste  system  upon  a  religious  basis 
prevailed.  Sir  Henry  Maine  tells  us  that  he  has 
himself  heard  a  high  caste  Indian  declare  that  it  is 
the  teaching  of  religion  that  a  Brahmin  is  entitled  to 
twenty  times  as  much  happiness  as  any  one  else, 
and  this  not  upon  the  ground  of  individual  merit 
arising  from  any  conduct  or  mode  of  life  on  his  part, 
but  because  intrinsically,  qua  Brahmin,  he  is  twenty 
times  the  superior  of  those  of  a  lower  caste.^ 

Aristotle  and  Plato,  while  not  perhaps  explicitly 
repudiating  the  idea  of  spiritual  equality,  laid  no 
emphasis  upon  it.  In  fact,  inasmuch  as  they  held 
that  individuals  had  an  existence  as  persons  only 
as  members  of  the  State,  their  intrinsic  worth  as 
persons  could  hardly  have  been  clearly  recognized. 
Thus,  while  the  physical  and  mental  differences 
between  individuals  were  clearly  recognized  and 
repeatedly  drawn,  little  or  no  mention  was  made  of 
the  essential  spiritual  likeness  which  underlies  these 
differences.  The  natural  result  of  this  was  that 
these  mental  and  physical  differences  were  so  empha- 
sized as  to  divide  men  into  classes  almost  generically 
distinct.      The  gap  which  thus  divided  Greek  and 

1  Early  History  of  Institutions,  p.  399,  American  edition. 


EQUALITY  37 

barbarian  was  made  so  broad  as  wholly  to  exclude 
the  latter  from  the  essential  rights  and  privileges 
which  were  conceived  to  belong  to  the  former.  In 
this  way  Aristotle  was  enabled  to  defend  slavery  as 
an  institution  just  alike  to  the  master  and  enslaved. 
It  is  true  that  these  views  may  be  held  to  be  but 
emphatic  statements  of  the  undoubted  natural,  physi- 
cal, and  mental  inequalities  of  men.  Still,  when  we 
find  no  mention  made  of  the  spiritual  equality  of  all 
mankind ;  when  man's  whole  ethical  duty  in  this 
world  is  declared  to  be  exhausted  in  an  obligation  to 
further  the  interests  of  his  State ;  when  the  immor- 
tality of  the  State  is  dwelt  upon  rather  than  that  of 
the  individual  soul ;  and  when  the  individual's  claim 
upon  the  State  for  recognition  is  wholly  determined 
by  these  natural  inequalities  of  mind  and  body, — 
when  we  consider  all  this,  we  can  not  avoid  main- 
taining that  these  philosophers  very  nearly,  if  not 
actually,  taught  a  doctrine  of  spiritual  inequality. 

The  Stoics  nearly  approached  the  idea  of  the 
spiritual  equality  of  all  men,  but  did  not  actually 
reach  it.  Theirs  was  a  doctrine  of  equality  based 
upon  the  essential  rationality  rather  than  the  spirit- 
uality of  men.  To  them,  all  men,  as  participants 
in  the  world-reason,  had  an  essential  likeness  and 
equality.  They  were  thus  able  to  teach  a  doctrine 
of  cosmopolitanism  as  opposed  to  the  narrow  partic- 
ularism of  the  Greek  city-states.  "  Cosmopolitanism 
took  the  place  of  politics,"  says  Zeller,  "  and  of  this 
the  Stoics  were  the  most  zealous  and  successful 
prophets.     Since  it   is   the    similarity  of   reason    in 

'i   (5  'i3'  4  6 


38  SOCIAL  JUSTICE 

the  individuals  on  which  all  community  among  men 
rests,  the  two  must  be  coextensive.  All  men  are 
akin.  They  have  all  the  same  origin  and  the  same 
mission.  All  stand  under  one  law,  are  citizens  of 
one  state,  members  of  one  body.  All  men,  as  men, 
have  a  claim  to  our  beneficence.  Even  slaves  can 
claim  their  rights  at  our  hands  and  show  themselves 
worthy  of  our  respect.  Even  to  our  enemies  we,  as 
men,  owe  clemency  and  ready  support." 

Stoicism  was  thus  able  to  reveal  to  the  ancient 
world  a  common  humanity  —  a  unity  of  the  human 
race.  This,  however,  was  a  unity  only  obtained  by 
rejecting  existing  political  divisions  as  immaterial 
and  accidental,  and  predicating  rationality  as  at  once 
the  common  and  essential  characteristic  of  mankind. 
It  was  not  a  unity  based  upon  a  mutual  charity, 
sympathy,  and  love,  following  from  a  conscious 
recognition  that  all  men  and  women  are  moral 
beings,  all  the  objects  of  a  single  divine  and  loving 
Will.  In  fact  such  an  idea  could  not  develop  until 
a  true  doctrine  of  conscience  had  arisen,  and  this 
not  even  the  Stoics  had  been  able  to  create.  "  To 
the  Stoic  ethics  belongs  the  glory,"  says  Windelband, 
"  that  in  it  the  ripest  and  highest  which  the  ethical 
life  of  antiquity  produced,  and  by  means  of  which  it 
transcended  itself  and  pointed  to  the  future,  attained 
its  best  formulation."  ■^  This  is  true,  and  yet,  as  we 
now  understand  it,  the  Stoics  failed  to  grasp  the 
idea  of  moral  obligation  in  its  highest  sense  of 
requiring  the  being  and  doing  of  good  for  its  own 

^History  of  Philosophy,  English  translatioji,  p.  176. 


1 


EQUALITY  39 

sake.  To  them,  as  to  other  Hellenic  schools  of 
thought,  the  good  was  ever  something  ultimately 
pleasant,  and  to  be  sought  because  it  was  such. 
They  taught,  to  be  sure,  that  the  duty  of  obedience 
is  not  an  obligation  imposed  from  without,  but  a 
command  given  from  within ;  but  this  command  was 
conceived  as  based  upon  utilitarian  grounds.  What- 
ever apparent  sacrifice  was  involved  in  the  search 
for  good,  they  believed  was  apparent  and  not  real, 
inasmuch  as  the  realization  of  a  higher  good  was 
supposed  more  than  to  compensate  for  the  immediate 
suffering  or  deprivation  undergone.  Thus,  in  fine, 
to  put  the  matter  in  a  nutshell,  "  The  central  prob- 
lem of  Greek  ethics  was  not  to  determine  the  moral 
laws,  but  rather  to  find  the  chief  good  and  the  mode 
of  conduct  which  would  secure  it.  It  was  the  doc- 
trine of  goods,  rather  than  the  doctrine  of  duties, 
which  gave  the  keynote  to  the  whole  moral  phi- 
losophy of  the  Greeks.  With  the  Stoics,  as  with 
their  contemporaries  and  opponents,  the  Epicureans, 
and  with  Aristotle  before  them,  the  aim  was  to 
determine  the  highest  good  of  life."  ^ 

It  was  first  in  the  doctrines  of  Christianity,  espe- 
cially as  interpreted  by  the  followers  of  St.  Paul, 
that  the  true  doctrine  of  spiritual  equality  was 
taught.  In  the  common  fellowship  with  Christ  all 
became  equal.  In  the  Christian  doctrines  of  charity, 
self-sacrifice,  and  obedience  the  true  theory  of  con- 
science was  revealed. 

This  idea  of  spiritual  equality  we  state  as  a  fact, 

^  French,  Concept  of  Law  in  Ethics. 


40  SOCIAL  JUSTICE 

rather  than  as  a  result  to  be  striven  for  in  any 
scheme  of  distributive  justice.  It  is  a  verity  the 
recognition  of  which  is  apodictically  impelled  upon 
us  by  our  reason.  It  is  not  a  condition  over  which 
we  can  exercise  any  influence  either  to  aid  or  pre- 
vent. Its  recognition  serves,  therefore,  to  furnish 
us,  not  with  a  canon  of  desert,  but  with  the  funda- 
mental reason  for  distributive  justice.  It  is  because 
all  men  are  persons  in  this  ethical,  spiritual  sense, 
that  we  owe  it  to  ourselves  as  well  as  to  others,  to 
seek  the  establishment  of  an  order  in  which  the 
utmost  possible  justice  shall  prevail.  In  fine,  then, 
we  have  thus  far  accepted  the  idea  of  equality  as 
playing  an  essential  part  in  our  scheme  of  justice, 
only  in  the  sense  that  all  individuals  are  entitled 
to  an  equality  of  consideration.  And  this,  after  all, 
is  but  another  way  of  expressing  that  idea  of  im- 
partiality which  we  accepted  in  the  beginning,  and 
which  finds  expression  in  the  command,  ^'  Be  a  person, 
and  respect  all  others  as  persons." 

II.  Natural  Equality.  —  In  what  we  have  had  to 
say  of  spiritual  equality,  we  have  dwelt  more  or  less 
upon  the  theory  of  natural  equality.  According  to 
the  theory  of  natural  equality,  strictly  conceived, 
all  men  and  women  are  naturally,  that  is,  when 
born,  substantially  and  potentially  equal,  physically 
and  mentally.  Whatever  inequalities  subsequently 
appear  must,  if  we  accept  a  doctrine  of  natural 
equality,  be  conceived  to  be  due  to  differences  in 
education  and  other  objective  conditions  of  life. 

We  are  not  acquainted  with  any  writer  who  has 


EQUALITY  41 

maintained  the  absolute  congenital  equality  of  all 
men,  but  there  are  many  who  have  held  that  the 
natural  differences  are  so  slight  that  they  may 
safely  and  properly  be  disregarded  in  the  formula- 
tion of  a  just  distributive  scheme.  Thus  says  God- 
win :  "  In  the  uncultivated  state  of  man,  diseases, 
effeminacy,  and  luxury  were  little  known,  and  of 
consequence  the  strength  of  every  one  much  more 
nearly  approached  to  the  strength  of  his  neighbor. 
In  the  uncultivated  state  of  man  the  understand- 
ings of  all  were  limited,  their  ideas  and  their 
views  nearly  upon  a  level."  ^  To  the  following 
effect  speaks  also  Hobbes :  "  Nature  has  made  men 
so  equal,  in  the  faculties  of  the  body  and  mind; 
as  that  though  there  be  found  one  man  sometimes 
manifestly  stronger  in  body,  or  of  quicker  mind 
than  another,  yet  when  all  is  reckoned  together, 
the  difference  between  man  and  man  is  not  so  con- 
siderable, as  that  one  man  can  thereupon  claim  to 
himself  any  benefit,  to  which  another  may  not  pre- 
tend as  well  as  he.  For  as  to  strength  of  body,  the 
weakest  has  strength  enough  to  kill  the  strongest 
either  by  secret  machination,  or  by  confederacy 
with  others,  that  are  in  the  same  danger  with  him- 
self. And  as  to  the  faculties  of  mind,  setting  aside 
the  arts  grounded  upon  words,  and  especially  that 
skill  of  proceeding  upon  general  and  infallible  rules, 
called  science ;  which  very  few  have,  but  in  few 
things ;  as  being  not  a  native  faculty,  born  with 
us;  nor  attained,  as  prudence,  while  we  look  after 

*  Political  Justice,  Book  II,  Chapter  IV. 


42  SOCIAL  JUSTICE 

somewhat  else,  I  jBnd  yet  a  greater  equality  amongst 
men  than  that  of  strength.  For  prudence  is  but 
experience ;  which  equal  time  equally  bestows  on  all 
men,  in  those  things  they  equally  apply  themselves 
unto.  That  which  may  perhaps  make  such  equality 
incredible,  is  but  a  vain  conceit  of  one's  own  wisdom, 
which  almost  all  men  think  they  have  in  a  greater 
degree  than  the  vulgar;  that  is,  that  all  men  but 
themselves,  and  a  few  others,  whom  by  fame  or 
for  concurring  with  themselves,  they  approve.  For 
such  is  the  nature  of  men,  that  howsoever  they  may 
acknowledge  many  others  to  be  more  witty,  or  more 
eloquent,  or  more  learned ;  yet  they  will  hardly 
believe  that  there  be  many  so  wise  as  themselves ; 
for  they  see  their  own  wit  at  hand  and  other  men's 
at  a  distance.  But  this  proveth  rather  that  men  are 
in  that  point  equal,  than  unequal.  For  there  is 
not  ordinarily  a  greater  sign  of  the  equal  distribu- 
tion of  anything,  than  that  every  man  is  contented 
with  his  share."  ^ 

Adam  Smith,  in  his  Wealth  of  Nations,  says  upon 
this  point :  "  The  difference  of  natural  talents  in  dif- 
ferent men  is,  in  reality,  much  less  than  we  are  aware 
of,  and  the  very  different  genius  which  appears  to 
distinguish  men  of  different  professions,  when  grown 
up  to  maturity,  is  not  upon  many  occasions  so  much 
the  cause  as  the  effect  of  the  division  of  labor.  The 
difference  between  the  most  dissimilar  characters, 
between  a  philosopher  and  a  common  street-porter, 
for  example,  seems  to  arise,  not  so  much  from  nature, 

1  Leviathan,  Chapter  XIII. 


EQUALITY  43 

as  from  habit,  custom,  and  education.  .  .  .  By  nature 
a  philosopher  is  not  in  genius  and  disposition  half  so 
different  from  a  street-porter  as  a  mastiff  is  from  a 
greyhound,  or  a  greyhound  from  a  spaniel,  or  this 
last  from  a  shepherd's  dog."  ^  Proudhon  comes  the 
nearest  of  all  in  declaring  the  original  mental  equal- 
ity of  men  when  he  says,  "  Talent  is  a  creation 
rather  than  a  gift  of  nature.  .  .  .  Without  society, 
without  the  education  and  powerful  assistance  which 
it  furnishes,  —  the  finest  nature  would  not  be  superior 
to  the  most  ordinary  capacities  in  the  very  respect 
in  which  it  ought  to  shine."  ^  In  another  place  in 
the  same  work,  however,  Proudhon  takes  a  contra- 
dictory position.^ 

We  do  not,  of  course,  need  to  stop  for  any  length 
of  time  to  demonstrate  the  fact  of  the  natural 
inequalities  among  men.  It  is  sufficient  to  say  that 
every  recent  advance  of  science  has  served  to  show 
these  inequalities  to  be  greater  than  was  before  sup- 
posed. As  a  matter  of  fact,  indeed,  as  we  have  seen, 
none  of  the  writers  who  have  dwelt  most  earnestly 
upon  this  point  have  done  more  than  maintain  a 
substantial  equality.  No  one  has  dared  to  assert  an 
absolute  equality.  There  are,  however,  two  observa- 
tions which  should  be  made  before  we  leave  this 
subject. 

In  the  first  place,  attention  should  be  called  to  the 
fact  that,  in  admitting  the  existence  of  natural  dif- 

1  Book  T,  Chapter  II. 

*  What  is  Property?    Tucker  translation,  p.  198. 

^  See  post,  p.  Ui,  note. 


44  SOCIAL  JUSTICE 

ferences  of  physical  and  mental  powers  among  men, 
there  is  given  no  support  to  a  theory  that  would 
hold  it  possible,  or  rational,  to  group  men  into  privi- 
leged classes,  according  to  the  simple  principle  of 
birth  in  this  or  that  family  line.  The  degree  to 
which  heredity  is  influential  in  determining  the 
character  and  capacities  of  the  individual  is  not, 
perhaps,  exactly  ascertainable.  But  no  grounds 
exist  for  maintaining  this  power  to  be  so  potent 
as  to  make  it  reasonably  certain  that  the  distinc- 
tive traits  of  an  ancestor  will  be  handed  down  to 
'his  descendants.  By  this  we  do  not  mean  that 
social  and  political  exigencies  may  not  require  the 
existence  of  an  aristocracy  of  birth;  but  if  they 
do,  it  will  be  these  exigencies,  and  not  the  facts 
of  individual  desert,  which  justify  the  discrimina- 
tions shown.  That  is  to  say,  the  need  for  a  class 
of  individuals  enjoying  special  opportunities  for  per- 
sonal development,  and  charged  with  the  perform- 
ance of  special  functions  in  the  political  or  social 
economy  of  a  given  people,  being  granted,  the  mere 
fact  of  birth  may  be  accepted  in  default  of  any  other 
sufficiently  definite  principle  of  distinction.  For 
the  same  reason  an  hereditary  kingship  may  be 
maintained,  not  because  it  is  thought  to  secure  for 
a  nation  the  best  kings,  but  because  it  guarantees 
a  definite  principle  of  royal  succession. 

For  an  aristocracy  with  special  privileges  without 
corresponding  special  functions  to  perform,  there 
would  seem  to  be  no  possible  justification.  Never- 
theless, aristocracies  of  precisely  this  character  have 


EQUALITY  45 

abounded  in  history.  We  are  thus  forced  to  ask, 
Upon  what  grounds  were  they  justified  m  the  eyes 
of  the  people  among  whom  they  prevailed  ?  Funda- 
mentally, we  must  believe  that  these  class  distinc- 
tions have  been  recognized  because  of  a  more  or  less 
vague  idea  prevalent  among  the  people  that  there 
is  between  the  noble  and  base-born  a  distinction 
almost  as  essential  as  that  between  mankind  and  the 
lower  animals.  Otherwise  there  could  hardly  have 
been  obtained  that  po^Dular  acquiescence,  which  for 
so  long  a  time  endured,  in  the  economic  and  political 
advantages  that  were  attached  to  the  upper  orders. 
When  we  find  a  divine  right  of  kings  to  govern 
wrong  widely  admitted ;  when  to  monarchs  of  noto- 
riously evil  lives  we  find  supernatural  powers  ascribed, 
such,  for  example,  as  the  "  royal  touch  "  for  the  cure 
of  disease  ;  when  we  discover  a  Beaumarchais  alleging 
as  a  justification  for  his  aristocratic  pretensions  that 
he  has  taken  the  trouble  to  be  born,  and  a  French 
dame  of  high  degree  replying,  when  warned  of  the 
coming  of  the  revolution,  that  "  the  Lord  will  think 
twice  before  he  will  allow  the  rights  of  the  nobility 
to  be  endangered,"  —  when  we  find  such  ideas  held 
by  the  upper  and  accepted  by  the  lower  classes,  we 
cannot  but  believe  that,  whether  explicitly  avowed 
or  not,  the  position  has  been  held  that  there  are 
orders  of  men  distinguished  by  differences  which 
go  deeper  than  personal  capacities,  and  which  thus 
separate  them,  qua  men,  from  one  another. 

The  definite  repudiation  of  such  an  idea  has  been 
more  completely  recognized  in  America  than  in  the 


46  SOCIAL  JUSTICE 

countries  of  the  Old  World.  At  the  same  tirae  it 
may  well  be  questioned  whether,  to  some  extent  at 
least,  we  have  not  swung  the  pendulum  too  far  the 
other  way ;  whether,  in  other  words,  in  refusing  to 
acknowledge  the  validity  of  pretensions  based  upon 
mere  title  or  birth  we  do  not,  as  a  people,  fail  to  give 
that  recognition,  and  display  that  deference,  which  is 
properly  due  where  individual  worth  has  manifested 
itself.  Do  we  not,  in  short,  fail  to  show  that  respect 
which  is  owing  to  men  of  letters,  to  public-spirited 
citizens,  or  even  to  the  individuals  whom  we  have 
honored  by  selecting  as  our  highest  rulers  of  the 
State  ?  And,  on  the  other  hand,  is  there  not  often 
found  an  improper  deference  paid  to  the  man  merely 
of  wealth  or  of  accidental  prominence  ?  The  aristo- 
cratic principle,  when  properly  interpreted,  is  a  valid 
one.  In  every  society  there  should  exist  an  aristoc- 
racy of  merit  and  individual  worth.  The  old  Pla- 
tonic ideal  of  a  society  in  which  the  wisest  and  best 
of  its  members  exercise  the  controlling  influence 
cannot  in  this  respect  be  improved  upon,  and  it  may 
easily  be  a  question  for  debate  whether  the  existence 
of  an  aristocracy  such  as  England  has,  which,  though 
based  upon  birth,  represents  a  class  of  citizens  who 
recognize  their  obligations  toward  their  State  and 
their  society,  is  not  preferable  to  the  total  absence  of 
any  aristocracy  whatsoever. 

Leaving  this  subject  of  aristocracy,  we  turn  to  a 
still  more  important  question  which  arises  in  connec- 
tion with  the  fact  of  the  natural  inequalities  of  men. 
Granting  that  these  inequalities  exist  —  inequalities 


EQUALITY  47 

due  to  no  original  merit  or  demerit  on  the  part  of 
the  individuals  subjected  to  them  —  does  this  fact 
impose  any  obligations  upon  the  individuals  who 
are  the  more  favored,  or  upon  society  as  a  whole,  to 
correct,  in  a  measure  at  least,  if  possible,  the  disad- 
vantages under  which  the  more  unfortunate  of  our 
fellow-beings  rest  ? 

As  an  abstract  principle  of  justice,  it  would  seem 
that,  so  far  as  the  opportunity  for  self-development 
of  these  unfortunates  is  affected,  it  does.  When  we 
consider  that  all  men  are  rational  beings  and  moral 
potentialities,  and  thus  fundamentally  equal,  one 
cannot  escape  from  the  conclusion  that  a  perfect 
regime  would  be  one  in  which  all  individuals  would 
have  an  opportunity  for  the  development  and  exer- 
cise of  those  capacities  which,  from  the  highest  ethical 
standpoint,  should  be  cultivated  and  employed.  And 
if  this  be  the  ethical  ideal,  it  necessarily  follows  that, 
so  far  as  it  lies  within  our  power,  we  should  strive 
for  its  attainment. 

The  recognition  of  this  obligation  does  not,  of 
course,  commit,  us  to  anything  resembling  commu- 
nism. This  appears  when  we  consider  the  difficulties 
that  surround  the  practical  application  of  the  rule, 
and  the  specific  duties  that  it  implies.  In  the  first 
place,  it  cannot  be  asked,  at  least  so  far  as  this  one 
rule  is  concerned,  that  we  individually,  or  society  as 
a  whole,  should  undertake  the  correction  of  any  but 
the  few  inequalities  which  are  obviously  due  to  cir- 
cumstances which  have  been  beyond  the  control  of 
those  affected  by  them.     Thus,  even  were  this  rule 


48  SOCIAL  JUSTICE 

of  justice  generally  recognized  and  followed,  there 
would  still  be  left  uncorrected  all  those  inequalities 
that  have  been  due  to  controllable  causes.  Further- 
more, this  rule  alone  places  no  obligation  upon  the 
individual  to  share  with  others  those  advantages 
which  he  has  secured  through  his  own  efforts  and 
without  assistance  from  naturally  superior  abilities 
or  environment.  And,  finally,  this  principle  would 
imply  neither  a  right  on  the  part  of  the  individual 
to  demand  an  opportunity  for  the  development  and 
exercise  of  every  talent  which  he  may  potentially 
possess,  nor  to  ask  that  he  be  given  exactly  the  same 
educational  advantages,  and  be  secured  the  same 
means  for  the  employment  of  his  physical  and  mental 
capabilities,  as  those  enjoyed  by  his  mates.  Accord- 
ing to  the  principles  of  justice  which  we  have  already 
established,  the  individual  can  claim  from  others  as  a 
right  only  those  privileges  which,  when  enjoyed,  will 
promote  his  own  best  good ;  and  this  best  good,  as 
we  have  also  seen,  must  necessarily  be  interpreted  in 
terms  of  the  general  good  of  all  humanity.  As  for 
the  character  of  the  opportunities  to  be  enjoyed  by 
each  individual  respectively,  this  clearly  must  de- 
pend upon  his  special  capacities.  For  example,  the 
principle  would  not  mean  that  the  microcephalic 
idiot  and  the  gifted  genius  should  receive  the  same 
educational  treatment.  It  would  mean  nothing  more 
than  that,  so  far  as  possible,  that  kind  of  opportunity 
for  economic  advancement  or  intellectual  develop- 
ment should  be  given  which  is  best  calculated  to 
actualize  the  powers  potentially  possessed.     Further 


EQUALITY  49 

still,  it  is  to  be  recognized  that,  as  has  been  already 
said  when  speaking  of  aristocracy,  aside  from  any 
other  considerations,  a  certain  amount  of  inequality 
may  be  desirable  upon  grounds  of  social  utility.  As 
Professor  Mackenzie  has  said  :  "  If,  indeed,  all  could 
be  maintained  at  the  highest  level  of  human  life,  it 
would  obviously  be  well  that  they  should  be  so  main- 
tained. But  the  greatest  advances  in  the  condition 
of  mankind  have  hitherto  been  made  by  a  few  indi- 
viduals who  have  been  able  to  develop  particular 
kinds  of  ability  in  an  exceptional  degree ;  and  even 
if  it  were  true  that  such  individuals  have  by  nature 
no  more  ability  than  their  fellows,  it  might  yet  be 
des'irable  among  men,  as  among  bees,  that  a  few 
should  be  picked  out  from  among  the  workers  — 
whether  by  circumstances  or  by  lot,  or  by  some  other 
mode  of  selection — to  be  sovereigns  and  leaders."  ^ 

One  consequence,  and  a  very  important  one, 
does,  however,  follow  from  the  acceptance  of  the 
rule  of  justice  of  which  we  have  been  speaking. 
This  is,  that,  when  put  into  practice,  the  two 
ideas  of  charity  and  justice  will  lead  to  exactly  the 
same  conduct.  In  other  words,  justice  when  prop- 
erly interpreted,  and  charity  when  properly  applied, 
must  lead  to  identical  treatment  of  others.  Psy- 
chologically the  ideas  of  charity  and  justice  are 
distinct.  The  one  is  based  upon  a  sympathy  which 
springs  up  spontaneously  at  the  sight,  or  knowledge, 
of  suffering.  The  other  is  a  sense  of  obligation, 
resulting  from  a  reasoned  judgment  as  to  what  is 

^  Introduction  to  Social  Philosophy,  p.  287. 


50  SOCIAL  JUSTICE 

properly  owed  to  another  under  the  given  circum- 
stances. The  one  is,  in  a  sense,  emotional  and  im- 
pulsive ;  the  other,  intellectual.  But  not  all  emotions 
or  impulses,  even  of  sympathy,  should  be  yielded  to. 
This  being  so,  there  is  the  necessity  of  determining, 
intellectually,  in  each  case,  whether  that  which  we  are 
prompted  by  our  tenderness  of  heart  to  do  should  be 
done.  When  we  stop  to  ascertain  this,  we  find  that 
we  have  no  right  to  extend  charity  except  where  it 
is  deserved.  But  assistance  is  deserved  only  where 
the  suffering  has  been,  to  some  extent  at  least,  un- 
merited, and  where  the  help  which  is  requested,  or 
offered,  is  calculated,  upon  the  whole,  beneficially  to 
affect  the  recipient.  We  are  thus  brought  to  the 
consideration  of  precisely  the  same  facts  as  those 
which  condition  the  rule  of  justice  that  we  have 
been  examining. 

In  truth,  it  is  perhaps  not  incorrect  to  say  that  much 
that  is  charity  in  one  age  becomes  recognized  as  sim- 
ple justice  in  the  next.  We  are  wont  to  classify  as 
deeds  of  justice  only  those  acts  toward  others,  the 
obligation  for  the  performance  of  which  is  strongly 
and  clearly  felt  by  us.  As,  however,  we  broaden 
our  intellectual  and  moral  horizons,  new  duties  are 
brought  within  our  view,  and  many  acts  that  before 
have  seemed  matters  of  grace  and  mercy  appear,  in 
the  new  and  fuller  light,  as  demands  upon  us  for 
simple  justice.  Thus,  in  imagination  at  least,  we 
can  picture  to  ourselves  a  time  when  such  perfect 
justice  will  be  rendered,  that  true  charity  will  find 
no  material  upon  which  to  employ  itself.     When  this 


EQUALITY  51 

stage  of  development  is  reached,  the  idea  of  justice 
will  not  swallow  up  the  feeling  of  sympathy  for  suf- 
fering, nor  lessen  the  tenderness  felt  by  the  strong 
for  the  weak,  but,  where  help  is  given,  it  will  be  given 
because  it  is  deserved,  and  not  for  the  sake  of  satis- 
fying a  desire  which  may  or  may  not  be  a  proper 
one.  Under  such  conditions,  even  where  no  direct 
relations  have  ever  existed  between  the  giver  and  the 
receiver,  the  extending  of  aid  will  be  deemed  but  a 
matter  of  simple  justice.  The  individual,  as  a  moral 
being,  will  be  recognized  to  have  the  right  to  demand 
that,  so  far  as  it  lies  within  human  power,  society 
shall  be  so  organized  as  to  give  to  all  a  due  op- 
portunity for  happiness  and  growth.  And,  recipro- 
cally, each  individual  will  perceive  that,  so  far  as 
it  lies  within  his  might,  it  is  his  duty  to  bring  it 
about  that  such  opportunity  is  given. 

III.  Civil  Equality.  —  This  form  of  equality  may 
be  considered  in  comparatively  few  words.  By  civil 
equality  is  meant  legal  equality,  the  possession  of 
equal  rights  in  the  sphere  of  private  law  by  all  the 
members  of  a  given  body  politic.  Such  an  absolute 
and  universal  equality  has  never  been  attempted  in 
any  system  of  jurisprudence,  nor  would  it  be  possible 
of  establishment  without  leading  to  the  greatest  evils. 
The  reason  for  this  is  that  not  all  individuals,  irre- 
spective of  age  or  sex,  are  equally  capable  either  of 
putting  civil  rights  to  their  proper  use,  or  of  satis- 
factorily fulfilling  the  corresponding  civil  obligations. 
Thus  in  all  communities,  even  in  those  where  the 
doctrines  of  freedom  and  equality  have  received  the 


62  SOCIAL  JUSTICE 

widest  acceptance,  we  find  minors  released  from 
many  of  the  legal  obligations  that  are  placed  upon 
adults,  and,  correspondingly,  deprived  of  privileges 
or  capacities  which  their  majors  enjoy.  The  same 
is  true  as  to  the  respective  legal  competences  of  men 
and  women,  of  persons  compos  mentis  and  persons 
non  compos  m,entis.  Where  these  distinctions  are 
based  upon  actual  differences  in  personal  capacity, 
and  have  for  their  aim  the  securing  of  the  greatest 
aggregate  justice,  rather  than  the  creation  of  arbi- 
trary distinctions,  their  existence  is  fully  justified. 
In  fine,  then,  though  often  spoken  of  as  such,  civil 
equality  cannot  be  considered  an  ideal  of  justice. 
The  nearest  we  can  come  to  framing  a  rule  of  justice 
in  this  respect  is  to  say  that  there  should  be  substan- 
\  tial  equality  as  to  all  individuals  who  are  conceived 
to  be,  from  an  intellectual  standpoint,  able  to  exer- 

I  cise  a  sound  discrimination  in  all  matters  with  which 

I 

,'  the  private  law  has  to  deal ;   and  that  exceptions  to 
^  this  rule  should  be  made  solely  for  the  sake  of  secur- 
ing greater  legal  protection  to  those  who  are  not 
thus  fully  competent. 

Civil  equality  such  as  this  does  not  exclude  the 
feature  found  in  all  systems  of  jurisprudence,  that 
different  subjects,  and  the  rights  of  different  classes 
of  persons,  should  be  examined  and  passed  upon  in 
different  courts,  and  that  each  of  these  tribunals 
should  have  its  own  mode  of  procedure  and  special 
forms  of  relief.  Thus  in  our  own  system  of  law,  we 
assign  certain  causes  of  action  to  what  are  known  as 
law  or  civil  courts,  while  others  are  given  to  equity 


EQUALITY  63 

courts,  while  still  others  are  held  to  lie  wholly  within 
the  jurisdiction  of  admiralty  tribunals.  So  also  we 
surrender  to  courts  martial  and  other  military  courts 
or  commissions  the  trial  of  offences  committed  by 
members  of  the  military  forces  of  the  country,  whereas 
all  other  crimes  are  triable  only  before  the  ordinary 
criminal  tribunals.  Likewise  on  the  Continent, 
though  not  in  England  or  the  United  States,  mat- 
ters connected  with  the  administration  of  government 
are  withdrawn  from  consideration  by  the  ordinary 
courts  of  the  country,  and  reserved  for  trial  by  spe- 
cially established  administrative  tribunals.  Here, 
too,  so  long  as  these  distinctions  are  based  upon  con- 
siderations of  approved  expediency,  no  canon  of  dis- 
tributive justice  is  violated. 

A  feature  of  modern  systems  of  jurisprudence  that 
is  closely  allied  to,  and  in  fact  often  confused  with, 
the  idea  of  civil  equality,  is  the  recognition  of  an 
equality  of  all  persons  before  the  law.  By  this  is 
meant  that  when  persons  are  brought  before  a  court 
of  justice  for  the  interpretation  or  enforcement  of 
their  respective  rights,  the  judgments  rendered  are  to 
be  determined  wholly  by  the  facts  and  law  involved, 
and  hence  irrespective  of  the  social,  economic,  politi- 
cal, or  moral  standing  of  the  parties  litigant.  At  first 
thought,  this  may  seem  unjustifiable.  When,  how- 
ever, the  true  nature  of  law,  and  the  object  sought  in 
its  enforcement,  is  considered,  it  is  seen  to  be  emi- 
nently just.  As  we  shall  elsewhere  have  occasion  to 
point  out  the  proper  province  of  law,  it  will  be  suffi- 
cient here  simply  to  assert  that  by  its  very  nature 


64  SOCIAL  JUSTICE 

and  limitations  the  law  is  prevented  from  even  at- 
tempting the  determination,  in  individual  cases,  of 
ethical  desert.  The  aim  of  law  as  a  whole  is,  of 
course,  to  secure  justice  in  an  ethical  sense;  but,  even 
where  there  is  a  certainty  that  wise  and  good  judges 
can  be  secured,  so  various  are  the  degrees  of  moral 
responsibility,  so  almost  infinite  are  the  considerations 
involved  in  estimating  the  depths  of  human  merit, 
while  so  limited  are  the  means  which  the  law  has  at 
its  command  for  the  discovery  of  truth,  it  is  gener- 
ally recognized  that,  in  the  long  run,  the  greatest 
amount  of  actual  justice  will  be  secured  where  the 
lawmaking  body  lays  down  in  general  terms  the 
principles  which  the  courts  are  to  follow,  and 
the  latter  apply  them  impartially  in  all  cases 
where  the  facts  are  such  as  to  bring  them  within 
the  general  terms  of  the  rules  thus  legislatively 
determined. 

IV.  Political  Equality. — By  political  equality  is 
meant  an  equality  of  right  to  share  in  the  direction 
of  public  affairs,  either  by  way  of  holding  office,  or 
by  selecting  those  who  do. 

Here  there  is  obviously  no  good  ground  for  de- 
manding that  the  law  should  secure  to  all  persons 
like  privileges. 

When  an  individual  claims  a  political  right,  he  is 
asking  for  an  authority  to  participate  in  the  making 
and  executing,  not  simply  of  the  laws  by  which  he 
himself  is  to  be  governed,  but  of  the  laws  which 
are  to  control  the  actions  of  others  as  well.  What- 
ever may  be  the  essential  basis  of  the  State's  right 


iBQUALITY  65 

to  be,  a  People  has  the  undoubted  right  to  demand 
as  efficient  a  government  as  can  be  obtained.  If 
this  be  so,  no  individual  can  claim  a  political 
authority  or  privilege  as  a  right,  save  as  he  can 
demonstrate  that  he  possesses  both  the  capacity 
and  the  disposition  properly  to  exercise  it  when 
obtained.  The  rule  of  justice  here  to  be  laid  down 
is,  then,  the  same  as  that  stated  in  our  second 
chapter;  namely,  that  rights  should  be  distributed 
according  to  the  capacities  and  the  dispositions  of 
the  individuals  who  are  to  exercise  them. 

In  all  nations  where  political  rights  are  liberally 
granted,  the  attainment  of  a  certain  age  is  accepted 
as  evidence  of  a  mental  capacity  sufficient  for  the 
casting  of  an  intelligent  vote,  or  for  the  proper 
exercise  of  the  duties  which  attach  to  a  public 
office.  Of  course,  however,  no  one  believes  that 
all  citizens  are  not  so  qualified  before  attaining  the 
given  age,  or  that  they  are  necessarily  so  qualified 
when  they  have  attained  it.  As  Amiel  has  said  in 
his  Journal,  "  The  pretension  that  every  one  has 
the  necessary  qualifications  of  a  citizen  simply 
because  he  was  born  twenty-one  years  ago,  is  as 
much  as  to  say  that  labor,  merit,  virtue,  character, 
and  experience  are  to  count  for  nothing."  The 
true  reason  for  fixing  such  an  arbitrary  distinction 
as  age  is  that,  a  general  diffusion  of  political  rights 
being  considered  advisable,  and  it  being  beyond 
the  power  of  the  government  to  ascertain  in  each 
individual  case  the  capacities  and  character  pos- 
sessed, the  granting  of  the  rights  in  question  to  all 


56  SOCIAL   JUSTICE 

above  a  certain  age,  will,  upon  the  whole,  best  attain 
the  purpose  sought. 

What  we  have  said  as  to  age  being  a  rough  test 
of  political  ability,  applies  also  in  large  measure 
to  such  other  general  criteria  as  ability  to  read 
and  write  or  the  ownership  of  a  given  amount  of 
property.  As  regards  the  last  qualification,  how- 
ever, the  additional  idea  is  sometimes  present  that 
there  is  thus  selected  a  class  who,  besides  capac- 
ity, will  have  a  special  interest  in  many  of  the 
matters  which  are  to  be  passed  upon. 

Though  there  is  no  necessary  connection  between 
the  wide  diffusion  of  political  rights,  and  a  general 
recognition  of  an  equality  in  private  rights,  the  two 
are  apt  to  go  hand  in  hand.  Between  these  two  and 
the  other  forms  of  equality  there  cannot,  however,  be 
this  much  said.  Political  and  legal  equality  may  go 
hand  in  hand  with  the  greatest  of  actual  inequalities 
in  wealth  and  social  standing.  Indeed,  as  Fitzjames 
Stephen  points  out  in  his  Liberty,  Equality,  Fraternity y 
it  is  perfectly  possible  for  a  greater  aggregate  amount 
of  equality  to  exist  under  a  regime  in  which  a  strict 
legal,  as  well  as  social,  caste  system  prevails,  than  in 
the  most  democratically  organized  of  societies.  For 
it  may  be  that,  while  under  the  caste  system  a  few 
broad  and  definite  distinctions  are  drawn,  within  the 
great  classes  thus  established,  a  very  substantial  equal- 
ity of  members  obtains.  On  the  other  hand,  where 
the  progress  of  democratic  ideas  has  resulted  in  the 
removal  of  all  artificial  restraints  and  barriers,  and 
individuals  compete  socially,  politically,  and  economi- 


EQUALITY  67 

cally  with  one  another  according  to  their  naturally 
given  powers,  a  competitive  struggle  of  such  intensity 
may  exist  that  the  greatest  of  inequalities  are  brought 
about.  Natural  differences  of  ability  and  fitness  being 
allowed  to  have  their  full  influence,  this  is,  indeed, 
apt  to  be  the  result.  Given  an  unrestricted  competi- 
tion in  any  field  of  activity,  such  natural  inequalities 
as  exist  among  the  competitors  may  be  counted  upon 
to  make  themselves  evident  in  their  most  extreme  form. 
Nor  does  the  general  diffusion  of  political  rights 
necessarily  lead  to  an  equal  diffusion  of  political 
powers.  As  Stephen  says :  "  Legislate  how  you 
will,  establish  universal  suffrage,  if  you  think  proper, 
as  a  law  which  can  never  be  broken,  you  are  still  as 
far  as  ever  from  equality.  Political  power  has  changed 
its  shape,  but  not  its  nature.  The  result  of  cutting  it 
up  into  little  bits  is  simply  that  the  man  who  can 
sweep  the  greatest  number  of  them  into  one  heap 
will  govern  the  rest.  The  strongest  man  in  some 
form  or  other  will  always  rule.  If  the  government 
is  a  military  one,  the  qualities  which  make  a  man 
a  great  soldier  will  make  him  a  ruler.  If  the  gov- 
ernment is  a  monarchy,  the  qualities  which  kings 
value  in  councillors,  in  generals,  in  administrators, 
will  give  power.  In  pure  democracy  the  ruling 
men  will  be  the  wire-pullers  and  their  friends." 
And  again :  "  To  try  to  make  men  equal  by  altering 
social  arrangements  is  like  trying  to  make  the  cards 
of  equal  value  by  shuffling  the  pack.  Men  are 
fundamentally  unequal,  and  this  inequality  will  show 
itself,  arrange  society  as  you  like." 


68  SOCIAL  JUSTICE 

V.  Social  Equality. — "  Social  equality,"  says  Bryce, 
"  denotes  the  kind  of  mutual  courtesy  and  respect 
which  men  show  to  one  another  when  each  feels  the 
other  to  be  '  as  good  as  himself/  —  a  respect  which 
stands  between  condescension,  on  the  one  hand,  and 
submissiveness,  on  the  other."  The  recognition  by 
one  individual  of  the  social  equality  of  another  with 
himself  is  an  intense  or  intimate  form  of  that  "  con- 
sciousness of  kind"  which  lies  at  the  basis  of  all 
social  and  political  associations.  As  we  have  said  be- 
fore, we  cannot  conceive  of  men  grouping  themselves 
into  more  or  less  permanent  unions  for  purposes  of 
nuitual  aid  and  enjoyment,  without  there  being  in 
their  minds  a  general  feeling  that  they  and  their  asso- 
ciates are  members  of  one  species,  and  have  common 
natures  and  common  desires.  For  mere  purposes  of 
military  offence  and  defence  and  of  economic  coopera- 
tion, it  is  not  necessary  that  this  "  consciousness  of 
kind"  should  extend  to  more  than  the  most  general 
of  those  characteristics  which  distinguish  races  of 
men  from  one  another,  or  men  from  animals.  When, 
however,  we  advance  to  those  higher  circles  of  fellow- 
ship which  are  formed  within  the  general  sphere  of 
a  given  society,  —  associations  founded  upon  recog- 
nized likenesses  of  mind  and  character,  —  it  is  inevi- 
table that  men  and  women  should  be  classified  upon 
different  planes  of  social  value.  Such  distinctions 
are  both  natural  and  just.  It  is  natural  that  differ- 
ences in  intellect,  in  education,  and  in  character 
should  lead  to  differences  in  taste,  and  that  those  of 
similar  tastes   should  feel   themselves   more    closely 


EQUALITY  59 

akin  than  those  of  dissimilar  natures.  It  is  also 
just,  for  it  is  of  the  very  nature  of  justice  that  due 
recognition  should  be  given  to  essential  superiorities 
or  inferiorities.  The  only  caution  to  be  observed  is 
that  these  distinctions  should  be  differences  of  char- 
acter and  worth,  and  not  accidental  inequalities  of 
body  or  economic  condition.  It  is  true,  as  Bryce 
says,  that  '^  the  more  social  equality  we  can  secure 
without  running  counter  to  nature  the  better  "  ;  but, 
"  more  harm  than  good  will  be  done  by  trying  to 
force  men  into  a  kind  of  intimacy  which  they  feel 
to  be  unreal,  because  not  grounded  on  sympathy  of 
thought  and  tastes  and  habits."  ^ 

VI.  Economic  Equality.  — By  economic  equality  is 
of  course  meant  equality  in  the  possession  of  articles 
of  material  value,  —  in  other  words,  of  wealth.  At 
this  point  we  have  to  discuss  only  the  question  as 
to  the  extent  to  which  the  principle  of  absolute 
equality  is  to  be  accepted  as  a  canon  for  the 
distribution  of  economic  goods.  The  examination 
of  all  other  rules  for  the  attainment  of  justice 
in  this  respect  will  be  made  in  a  subsequent 
chapter. 

Certain  schools  of  communists  declare  that  justice 
demands  an  absolute  equality  in  diftribution.  In 
order  that  this  result  may  be  reached,  they  of  course 
assert  that  almost,  if  not  all,  property  should  be 
owned  in  common.  Furthermore,  in  order  to  render 
this  equality  more  real  and  permanent,  most  com- 
munistic schemes  require  that  the  manner  in  which 

1  Century  Magazine,  July,  1888,  article,  "  Equality." 


60  SOCIAL   JUSTICE 

these  distributive  shares  are  to  be  consumed  shall  be 
subjected  to  the  control  of  the  State. 

Schemes  of  this  sort,  so  far  as  regards  the  theo- 
retical principles  upon  which  they  are  based,  may  be 
roughly  divided  into  two  classes.  First,  there  are 
those  of  the  order  of  Plato's  Republic,  in  which  the 
welfare  of  the  whole  is  so  emphasized  as  to  make 
that  of  the  individual  an  almost  negligible  factor, 
and  in  which,  therefore,  the  allegiance  of  the  citizen 
to  his  State  is  conceived  to  be  so  important  that  all 
local  affections,  such  as  those  which  surround  the 
family,  are  discouraged  as  tending  to  prevent  that 
desired  complete  identification  of  the  individual's 
interest  with  that  of  his  State.  Secondly,  and  more 
common,  are  those  communistic  schemes  that  are 
founded  on  the  alleged  abstract  natural  right  of 
every  person  to  as  complete  an  economic  and  social 
equality  as  is  practically  possible. 

The  argument  that  has  been  made  in  a  preced- 
ing chapter  of  this  book  has  demonstrated  the  im- 
propriety of  such  a  surrender  of  the  individual  to 
the  whole,  or  rather  his  absorption  in  it,  as  is  called 
for  by  the  Platonic  ideal.  And  even  if  this  were  not 
so,  the  communal  life  such  as  Plato  advocated  would 
serve,  as  Aristotle  immediately  showed,  rather  to 
discourage  than  to  promote  intensity  of  civil  alle- 
giance. 

Those  communistic  schemes  which  are  economic 
rather  than  political  in  character,  and  which  found 
the  demand  for  absolute  equality  upon  an  alleged 
inherent  right  of  all   individuals   to   uniform  treat- 


EQUALITY  61 

ment,  are  represented  in  the  systems  of  Baboeuf, 
Cabet,  and  Proudhon.  Baboeuf  was  a  representa- 
tive of  the  communism  of  the  French  Revolution. 
The  revolutionary  society  which  he  organized  de- 
clared in  the  first  article  of  its  official  manifesto 
that,  ''Nature  has  given  to  every  man  an  equal 
right  to  the  enjoyment  of  all  goods."  The  conclu- 
sions drawn  from  this  premise  were  that  there 
should  be  an  absolute  equality  in  wealth  and  a  uni- 
formity in  life.  *'  The  whole  scheme,"  says  Dr.  Ely, 
"is  dreary  and  monotonous.  All  differences  save 
those  relating  to  age  and  sex  being  abolished, 
equality  is  interpreted  to  mean  uniformity.  All 
must  be  dressed  alike,  save  that  distinctions  are 
made  for  sex  and  age ;  all  must  eat  the  same  quan- 
tity of  the  same  kind  of  food,  and  all  must  be  edu- 
cated alike.  As  the  higher  goods  of  life  are  lightly 
esteemed,  education  is  restricted  to  the  acquirement 
of  elementary  branches  of  knowledge,  and  of  those 
practical  in  a  material  sense.  Comfortable  medioc- 
rity in  everything  is  the  openly  expressed  ideal."  ^ 

Cabet' s  ideal,  while  calling  for  community  of 
goods  and  an  equality  of  distribution,  is  of  a  superior 
order  to  that  of  Baboeuf  s  in  that  marriage  and  family 
life  are  held  sacred,  higher  education  is  advocated, 
and  in  general  the  value  of  aesthetic  and  intellectual 
pursuits  recognized. 

Proudhon,  who  strenuously  denied  that  he  was  a 
communist  in  the  sense  that  all  wealth  should   be 

^  French  and  German  Socialism,  p.  30.  See  this  work  for  an  excellent 
account  of  the  theories  of  Baboeuf  and  Cabet. 


62  SOCIAL  JUSTICE 

publicly  owned,  was  yet  a  communist  in  that  he 
advocated  absolute  economic  equality  as  an  ideal. 
Dr.  El}^  says :  "  He  was  not  a  communist  in  the 
sense  of  favoring  communities  such  as  we  see  in  a 
few  places  at  present,  because  they  involve  control 
and  authority.  He  was,  on  the  contrary,  in  favor 
of  anarchic  equality.  The  distinction  might  be  made 
by  saying  that  he  was  a  communist,  but  not  a  com- 
mutarian."  ^  Strangely  enough,  Proudhon  is  able  to 
deduce  the  rightfulness  of  absolute  equality  in  dis- 
tribution from  the  premise  that  rewards  should  be 
apportioned  according  to  work  done.  This  feature 
of  his  system  we  shall  consider  when  we  come  to 
examine  the  labor  theory  of  property.  But  his  doc- 
trine of  equality  may  be  considered  at  this  point. 

Proudhon  does  not  deny  that  men  and  women 
differ  widely  both  in  mental  and  physical  abilities, 
but  declares  that  this  should  not  lead  to  inequality 
of  wage,  and  for  the  following  reasons :  In  the  first 
place,  as  he  declares,  mental  differences  as  shown 
in  varieties  and  degrees  of  talent  and  genius  are  due 
to,  or  at  least  their  development  is  rendered  possible 
by,  social  causes  alone.  Thus  he  says :  "  Rarity 
of  function  bestows  no  privilege  upon  the  function- 
ary, and  that  for  several  reasons,  all  equally  forcible. 
(1)  Rarity  of  genius  was  not,  in  the  Creator's 
design,  a  motive  to  compel  society  to  go  down  on 
its  knees  before  the  man  of  superior  talents,  but  a 
providential  means  for  the  performance  of  all  func- 
tions to  the  greatest  advantage  of  all.       (2)    Talent 

^French  and  German  Socialism,  p.  139. 


EQUALITY  63 

is  a  creation  of  society  rather  than  a  gift  of  Nature ; 
it  is  an  accumulated  capital,  of  which  the  receiver 
is  only  the  guardian.  Without  society,  —  without 
the  education  and  powerful  assistance  which  it  fur- 
nishes, — the  finest  nature  would  be  inferior  to  the 
most  ordinary  capacities  in  the  very  respect  in  which 
it  ought  to  shine.  The  more  extensive  a  man's 
knowledge,  the  more  luxuriant  his  imagination, 
the  more  versatile  his  talent,  the  more  costly  his  edu- 
cation has  been,  the  more  remarkable  and  numer- 
ous were  his  teachers  and  his  models,  the  greater  is 
his  debt.  The  farmer  produces  from  the  time  that 
he  leaves  his  cradle  until  he  enters  his  grave ;  the 
fruits  of  art  and  science  are  late  and  scarce ;  frequently 
the  tree  dies  before  the  fruit  ripens.  Society,  in  culti- 
vating talent,  makes  a  sacrifice  to  hope.  (3)  Capac- 
ities have  no  common  standard  of  comparison ;  the 
conditions  of  development  being  equal,  inequality  of 
talent  is  simply  specialty  of  talent."  ^ 

Society,  then,  argues  Proudhon,  has  the  right  to 
demand  from  each  individual  that  he  shall  contrib- 
ute to  its  welfare  according  to  capacities  which  have 
been  developed  through  its  instrumentality.  When 
all  have  done  this,  they  stand  upon  a  level  plain  of 
desert,  and  should  be  rewarded  accordingly.  Fur- 
thermore, in  any  civilized  society  all  production  is 
social.  That  is,  not  only  are  values  socially  deter- 
mined, but  production  itself  is  dependent  upon  asso- 
ciation. "  The  isolated  man  can  supply  but  a  very 
small  portion  of  his  wants;  all  his  power  lies  in  asso- 

^  What  is  Property  ?  Tucker  translation,  p.  198. 


64  SOCIAL   JUSTICE 

ciation.  and  in  the  intelligent  combination  of  univer- 
sal effort."  ^  Finally,  Proudlion  says,  those  who 
have  special  talents  are  sufficiently  rewarded  when 
they  are  given  the  opportunity  of  exercising  their 
several  abilities.  "  What,"  he  asks,  "is  the  economi- 
cal meaning  of  wages  ?  The  productive  consumption 
of  the  laborer.  The  very  act  by  which  the  laborer 
produces  constitutes,  then,  this  consumption,  exactly 
equal  to  his  production,  of  which  we  are  speaking. 
When  the  astronomer  produces  observations,  the 
poet  verses,  or  the  savant  experiments,  they  consume 
instruments,  books,  travels,  etc. ;  now,  if  society  sup- 
plies this  consumption,  what  more  can  the  astrono- 
mer, the  savant,  or  the  poet  demand  ?  We  must 
conclude,  then,  that  in  equality,  and  only  in  equality, 
St.  Simon's  adage  — '  to  each  according  to  his  capac- 
ity, to  each  capacity  according  to  its  results  '  —  finds 
its  full  and  complete  application."  ^ 

1  Op.  cit.,  p.  148. 

2  Op.  cit.,  p.  200,  Elsewhere  he  declares,  though  this  would  scarcely 
seem  necessary  to,  or  even  consistent  with,  his  main  argument,  that, 
inasmuch  as  there  is  a  limit  to  producible  things,  or  at  least  to 
things  socially  useful,  he  who  is  able  to  finish  his  task  in  a  shorter 
time  than  his  fellow-workers  should  not  be  permitted  to  continue 
producing.  "  He  who  finishes  before  others  may  rest,  if  he  chooses ; 
he  may  devote  himself  to  useful  exercises  and  labors  for  the  main- 
tenance of  his  strength  and  the  culture  of  his  mind.  This  he  can  do 
without  injury  to  any  one  ;  but  let  him  confine  himself  to  services 
which  affect  him  solely."  And  he  adds,  what  is  certainly  contradic- 
tory to  those  paragraphs  which  we  have  quoted  above,  "  Vigor, 
genius,  diligence,  and  all  the  personal  advantages  which  result  there- 
from, are  the  work  of  nature,  and,  to  a  certain  extent,  of  the  individ- 
ual ;  society  awards  them  the  esteem  which  they  merit :  but  the 
wages  it  pays  to  them  is  measured,  not  by  their  power,  but  by  their 
production.  Now  the  production  of  each  is  limited  by  the  right  of 
all."     (Op.  cit.  p.  125.) 


EQUALITY  65 

The  defects  in  Proudhon's  reasoning  lie  upon  the 
surface.  The  chief  one  is  the  unwarranted  assump- 
tion that  differences  in  kind  and  degree  of  talent  are 
wholly  due  to  social  forces.  There  is,  secondly,  the 
error  of  supposing  that  at  any  one  time  the  amount 
of  goods  needed  or  desired  by  a  given  society  is  of 
such  a  limited  character  that  to  permit  the  rapid 
worker  to  produce  to  the  extent  of  his  capacity  will 
prevent  others  from  finding,  j^^o  tanto,  the  employ- 
ment to  which  they  are  justly  entitled.  Aside,  how- 
ever, from  the  above  assumptions,  no  good  ground 
is  put  forward  for  denying  that  rewards  should  be 
apportioned  according  to  diligence  displayed.  Prou- 
dhon,  in  fact,  later  on  recognizes  that  where  laziness  is 
exhibited  by  the  worker,  his  share  should  be  propor- 
tionally reduced.  But  to  faithfulness  and  diligence 
he  denies  the  opportunity  for  increased  reward.  But 
this  can  be  just  only  if  this  spirit  of  faithfulness  and 
diligence  be,  as  is  claimed  of  talent,  the  result  of 
social  forces.  But  such  a  position  Proudhon  does 
not,  and  cannot,  take. 

Besides  the  above,  there  are,  of  course,  all  the 
general  objections  to  communism,  such  as  difficulties 
of  organization,  and  failure  to  furnish  such  incentives 
to  effort  as  are  indispensable  for  the  securing  of  even 
moderate  productive  efficiency. 

Godwin  in  his  Political  Justice  preaches  a  doctrine 
of  distributive  equality,  but  bases  it,  not  upon  the 
principle  that  all  men  have  a  natural  right  to  equal- 
ity of  treatment,  but  upon  the  claim  that  justice 
demands  that  want-satisfying  commodities  should  be 


66  SOCIAL   JUSTICE 

distributed  according  to  intensity  of  needs,  and  that, 
in  a  properly  ordered  and  enlightened  society,  legiti- 
mate wants  would  be  so  evenly  dist)'ibuted  that  an 
approximate  equality  in  the  apportionment  of  eco- 
nomic goods  would  be  the  result.  We  shall  discuss 
Godwin's  theories  more  fully  when  we  examine  the 
validity  of  the  "  want  theory "  as  a  basis  of  dis- 
tributive justice. 

Reasoning  from  the  discussion  that  has  gone 
before,  it  is  easily  shown  that,  as  an  abstract  prin- 
ciple, the  idea  of  equality  in  economic  goods  is  of 
little  value.  As  we  have  already  learned,  the  rights 
to  which  individuals  may  properly  lay  claim  differ 
according  to  the  conditions  of  time,  place,  the  pur- 
pose for  which  they  are  to  be  used,  and  the  capacities 
and  dispositions  of  the  individuals  themselves.  If 
this  be  so,  then,  of  course  the  amounts  of  wealth 
which  different  individuals  may  justly  demand  the 
enjoyment  of,  must  vary.  This  point  will  appear 
more  plainly  when  we  come  to  consider  what  we 
conceive  to  be  the  true  canon  of  distributive  justice.^ 

It  is  not  simply  in  transcendental  systems  of  ethics, 
however,  that  the  idea  of  economic  equality  becomes 
invalid  as  an  abstract  principle.  The  same  is  true  if 
the  matter  be  viewed  from  the  purely  utilitarian 
standpoint.  Utilitarianism,  whether  logically  or  not, 
has  been  made  to  assume  two  forms.  On  the  one 
hand,  it  has  been  made  to  mean  that  advantage  to 
the  individual  should  be  the  one  aim  sought  in  human 
conduct.     On  the  other  hand,  it  has  been  made  to 

1  See  Chapter  VII. 


EQUALITY  67 

assert  that  the  social  welfare  should  be  the  result 
striven  for.  In  each  case,  however,  the  welfare, 
whether  individual  or  social,  is  declared  desirable 
wholly  because  of  the  pleasure  which  attends  it. 
Hence  the  moral  value  of  acts  is  estimated  by  their 
power  to  produce  pleasure. 

If  we  argue  from  the  individualistic  utilitarian 
standpoint,  it  is  seen,  in  the  first  place,  that,  strictly 
speaking,  the  idea  of  justice  in  the  distribution  of 
economic  goods  can  have  no  other  meaning  than  as 
a  rule  bidding  each  individual  to  seek  for  wealth 
in  so  far  as  his  happiness  is  bound  up  in  its  acquisi- 
tion. No  possible  standing  ground  is,  therefore,  open 
for  the  principle  of  equality.  For  if  it  be  the  duty 
of  each  individual  to  seek  first  his  own  happiness, 
how,  logically,  can  he  be  held  obligated  to  refrain 
from  any  act  that  will  further  that  end,  whether 
inequalities  in  the  distribution  of  property  be  the 
result  or  not? 

If  we  argue  from  the  social  standpoint,  the  reason- 
able rale  is  seen  to  be  that  laws  should,  so  far  as 
possible,  apportion  wealth,  not  according  to  the  prin-i 
ciple  of  equality,  but  according  to  needs ;  for  where 
the  want  is  most  intense,  the  pleasure  produced  by 
its  satisfaction  is  the  greatest.  What,  then,  is  the 
meaning  of  the  Benthamistic  formulae,  "  every  one  to 
count  for  one,  and  no  one  for  more  than  one,"  and 
"the  greatest  happiness  to  the  greatest  number"? 
As  regards  the  first  formula,  there  is  a  validity 
where  it  is  intended  to  mean  the  same  as  the 
Kantian  phrase  that  every  human  being   is  to   be 


68  SOCIAL  JUSTICE 

treated  as  a  person,  —  as  constituting  a  single  moral 
unit.  But  when  it  is  employed,  as  it  so  often  is,  to 
signify  that  equality  is  the  principle  upon  which 
pleasures  should  be  distributed,  the  rule  becomes 
invalid,  and,  in  fact,  implies  an  assumption  of  the 
equality  of  mankind  similar  to  that  which  has  played 
so  prominent  a  part  in  all  a  priori  systems  of  natural 
rights.^  There  is,  as  Ritchie  points  out,  only  one 
way  in  which,  upon  utilitarian  grounds,  the  formula 
may  be  justified  as  a  rule  for  practice.  ''  That 
'  every  one  should  count  for  one,  and  nobody  for 
more  than  one,'  can,  indeed,  be  defended  on  utilita- 
rian grounds  as  the  only  way  or  the  easiest  way  of 
escaping  from  the  difficulty  of  distinguishing  exactly 
between  the  needs  and  merits  of  individuals,  and  of 
arresting  the  discontent  that  arises  from  a  suspicion 
of  injustice."  ^ 

Again,  the  principle,  "  the  greatest  good  to  the 
greatest  number,"  is  inconsistent  with  the  formula 
of  the  equality  of  all  men,  in  that  the  greater  aggre- 

1  "  For  practical  purposes  the  principle  that,  in  the  estimate  of  the 
resulting  happiness  by  which  the  value  of  an  action  is  to  be  judged, 
'  every  one  should  count  for  one,  and  no  one  for  more  than  one,'  yields 
very  much  the  same  direction  as  that  of  the  formula  employed  by 
Kant  for  the  statement  of  the  Categorical  Imperative,  vrhich  has  prob- 
ably always  commended  itself  most  to  readers  alive  to  the  best  inter- 
ests of  their  time :  '  Act  so  as  to  treat  humanity,  whether  in  your  own 
person  or  in  that  of  others,  always  as  an  end,  never  merely  as  a  means.' 
We  say  for  practical  purposes,  because,  as  strictly  interpreted,  the  one 
by  a  Benthamite,  the  other  by  a  Kantian,  the  significance  of  the  two 
formulae  is  wholly  different.  The  Benthamite  would  repudiate  or 
pronounce  unintelligible  the  notion  of  an  absolute  value  in  an  individual 
person.  It  is  not  every  person,  according  to  him,  but  every  pleasure 
that  is  of  value  in  itself."  —  Grken,  Prolegomena  to  Ethics,  §  214. 

2  Natural  Rights,  Chapter  XII. 


EQUALITY  69 

gate  of  pleasure  may  often  be  secured  by  dividing  a 
given  object  of  desire  among  a  few,  or  by  giving  to 
some  a  greater  amount  than  to  others,  rather  than 
by  distributing  it  equally  in  small  shares  among  all. 
Thus,  for  example,  if  a  government  were  serving  out 
meals,  an  equal  amount  of  food  given  to  all,  irrespec- 
tive of  their  needs,  might  easily  result  in  a  surfeit  to 
some,  while  others  were  left  unsatisfied.  In  this 
way  the  application  of  the  rule  that  "every  one 
should  count  for  one,  and  nobody  for  more  than 
one  "  would  render  impossible  the  realization  of  the 
greatest  good  called  for  by  the  second  rule.  The 
same  difficulty  in  satisfying  the  requirements  of 
both  rules  is  seen  when  we  turn  to  the  problem  of 
properly  distributing  intellectual  and  aesthetic  goods. 
It  can  scarcely  be  doubted  that  in  any  society  it  is 
desirable  that  a  certain  amount  of  intellectual  and 
artistic  culture  should  be  provided  which,  however, 
is  of  such  advanced  character  that  its  attainment  is 
practically  possible  to  but  a  smaU  portion  of  the 
entire  community.^ 

If,  from  the  Benthamistic  or  egoistic  form  of  utilita- 
rianism we  turn  to  the  universalistic  or  social  form  of 
the  theory,  as  best  represented  in  the  writings  of 
John  Stuart  Mill,  we  find  logically  necessary  the 
same  repudiation  of  equality  as  an  absolute  principle. 
According  to  Mill,  "  It  is  quite  compatible  with  the 
principles  of  utility  to  recognize  the  fact  that  some 
kinds  of   pleasure  are  more  desirable  than  others." 

1  Cf.  Economic  Review,  I,  466,  and  11,  161 ;  two  articles  by  Mr. 
Rashdall  entitled  "  Justice." 


70  SOCIAL   JUSTICE 

This  being  so,  Mill  goes  on  to  declare  that  the  pleas- 
ure that  is  felt  by  the  individual  when  he  sees 
the  welfare  of  society  advanced,  is  of  a  higher  and 
more  desirable  order  than  self-gratification  at  the 
expense  of  the  good  of  the  whole.  It  is  generally 
recognized  that  in  thus  admitting  forms  of  happiness 
that  differ  one  from  the  other  in  value.  Mill,  in  fact, 
abandons  the  utilitarian  theory.  For  the  kernel  of 
the  utilitarian  theory  is  that  pleasure  is  the  sole  good 
to  be  sought,  and  hence  that  the  pleasure-provoking 
power  of  a  given  line  of  conduct  is  the  only  test  as 
to  whether  or  not  it  should  be  entered  upon.  But 
if  pleasures  may  be  considered  as  of  varying  values, 
an  entirely  new  test  of  morality  is  introduced, 
namely,  that  in  accordance  with  which  such  values 
are  determined.  Thus,  in  truth.  Mill's  doctrine,  so 
far  as  its  practical  precepts  are  concerned,  is  no 
longer  hedonistic,  and  the  duties  which  it  inculcates 
may  easily  be  made  to  agree  with  those  which  a 
transcendental  system  of  ethics  develops. 

There  is,  however,  another  criticism  that  may  be 
made  upon  Mill's  theories.  Maintaining,  as  he  does, 
that  social  expediency  is  the  one  aim  to  be  sought,  it 
would  seem  that,  logically,  he  should  declare  equality 
to  be  just  only  in  so  far  as  its  effects  are  beneficial. 
Mill  says,  "  All  persons  are  deemed  to  have  a  right 
to  equality  of  treatment  except  where  some  recog- 
nized social  expediency  requires  the  reverse,  and 
hence  all  social  inequalities  which  have  ceased  to  be 
considered  expedient  assume  the  character  not  of 
simple  inexpediency,  but  of  injustice."     This  implies 


EQUALITY  71 

that  there  is  a  presumption  in  favor  of  equality, 
whereas,  if  we  are  to  place  ourselves  upon  purely 
utilitarian  grounds,  there  should  be  no  presumption 
either  way.  To  be  unjust,  an  inequality  must  not 
simply  cease  to  be  socially  useful,  but  must  be  posi- 
tively inexpedient.  Upon  utilitarian  grounds  an 
inequality  to  which  can  be  traced  no  influences 
either  for  good  or  for  bad  cannot  stand  condemned, 
any  more  than  can  a  given  equality  similarly  neutral 
in  its  social  effects.  And  this,  logically,  must  be 
the  position  maintained,  whether  or  not  such  in- 
equality or  equality  be  due  to  some  merit  or  demerit 
on  the  part  of  the  individual  affected.  Upon  this 
point  Green  writes :  "  Upon  hedonistic  principles  it 
will  only  be  as  '  supposed  equal  in  degree '  that  one 
person's  happiness,  i.e.  his  experience  of  pleasure,  is 
to  count  for  as  much  as  another's.  Now,  as  the 
ascertainment  of  this  equality  in  degree  between 
the  happiness  of  one  man  and  that  of  another  is  prac- 
tically impossible,  and  as  there  is  every  reason  to 
think  that  different  men  are  susceptible  of  pleasure 
in  most  different  degrees,  it  is  hard  to  see  how  the 
formula,  thus  interpreted,  can  afford  any  positive 
ground  for  that  treatment  of  all  men's  happiness  as 
entitled  to  equal  consideration  for  which  the  utili- 
tarians have  in  practice  been  so  laudably  zealous. 
The  most  that  could  be  deduced  from  it  would  be 
some  very  general  condemnation  of  those  fixed  class 
distinctions  which,  by  interfering  with  the  free  pur- 
suit of  pleasure  on  the  part  of  unprivileged  persons, 
would   seem   to   lessen   the    aggregate    of    pleasure 


72  SOCIAL   JUSTICE 

resulting  on  the  whole.  Under  it  a  superior  race  or 
order  could  plead  strong  justification,  not  indeed  for 
causing  useless  pain  to  the  inferior,  but  for  system- 
atically postponing  the  inferior's  claims  to  happiness 
to  his  own.  Certainly  no  absolute  rule  could  be 
founded  on  it  prohibiting  all  pursuit  of  happiness  by 
one  man  which  interferes  with  the  happiness  of 
another,  or  what  we  commonly  call  the  oppression 
of  the  weaker  by  the  stronger;  for,  the  stronger 
being  presumably  capable  of  pleasure  in  a  higher 
degree,  there  could  be  nothing  to  show  that  the 
quantity  of  pleasure  resulting  from  the  gain  to  the 
stronger  through  the  loss  to  the  weaker  was  not 
greater  than  would  have  been  the  quantity  result- 
ing if  the  claims  of  each  had  been  treated  as  equal."  ^ 
The  chief  merits  that  have  been  claimed  for  the 
utilitarian  system  have  been,  first,  its  insistence  upon 
the  doctrine  of  equality,  and,  secondly,  the  practical, 
i.e.  apparently  easily  ascertainable,  character  of  the 
test  that  it  provides  for  evaluating  moral  worth.  As 
regards  the  first,  it  is  undoubtedly  true  that  the  influ- 
ence of  the  theory  has  been  influential  in  many  cases 
in  bringing  about  the  destruction  of  arbitrary  distinc- 
tions. At  the  same  time,  as  we  have  just  seen,  in  so 
far  as  it  has  had  this  influence,  it  has  had  it,  not 
because  of  the  logical  demands  of  the  system,  but, 
very  often,  in  violation  of  them.  As  regards  the 
second  merit  claimed,  here  also  the  influence  of  utili- 
tarianism has  been  for  the  good  in  many  cases,  in 
that  it  has  demanded  of  de  facto  institutions  and  laws 

^  Prolegomena  to  Ethics,  §  214. 


EQUALITY  73 

that  tliey  should  justify  their  right  to  be,  if  they 
could,  by  showing  that  they  were  for  the  good  of 
mankind.  As  a  matter  of  fact,  however,  we  find, 
when  we  attempt  to  ascertain  the  propriety  of  partic- 
ular acts  according  to  utilitarian  principles,  that,  so 
far  from  furnishing  us  with  easily  ascertainable  cri- 
teria, the  considerations  logically  involved  are  for  the 
most  part  quite  beyond  our  powers  of  determination. 
Here  again  we  may  quote  from  Green :  "  Is  it  really 
possible,"  he  says,  "  to  measure  the  addition  to  the 
pleasure  of  others,  or  diminution  of  their  pains,  that 
would  be  caused  by  the  agents  abstaining  from  any 
.  .  .  act  ?  .  .  .  The  loss  of  pleasure  would  vary 
indefinitely  with  different  persons ;  it  would  be  dif- 
ferent in  the  same  person  at  different  times.  .  .  , 
How  can  we  be  sure  that,  in  all  or  most  cases  where 
such  actions  are  done,  the  certain  loss  of  pleasure  or 
increase  of  pain  to  each  individual  which,  taking  him 
as  he  is  on  occasion  of  each  action,  would  be  implied 
in  his  acting  otherwise  than  he  does,  would  be  so 
overbalanced  by  increase  of  pleasure  or  decrease  of 
pain  to  others,  that  the  total  sum  of  pleasure  enjoyed 
by  the  aggregate  of  men,  taking  them  as  they  are, 
would  be  greater  than  it  is  ? "  ^ 

On  the  other  hand,  moreover,  it  is  impossible  to 
tell  how  much  evil  the  utilitarian  system  has  wrought 
by  confusing  men's  ideals,  by  holding  forth  false 
motives,  by  causing  the  immediate  good  to  be  pre- 
ferred to  the  more  remote,  and  by  encouraging  (in 
fact,  if  not  in  theory)  the  search  for  the  lower  and 

1  Op.  cit.,  §  344. 


74  SOCIAL  JUSTICE 

more  material  pleasures,  rather  than  the  happiness 
that  attends  the  cultivation  of  our  sesthetic,  intellec- 
tual, and  truly  moral  capacities. 

Summarizing  our  objections  to  economic  equality 
as  an  absolute  principle,  we  find  them  to  be  the  fol- 
lowing :  first,  the  element  of  individual  desert  is 
wholly  disregarded;  secondly,  no  principle  is  pro- 
vided for  correcting  natural  and  unmerited  inequali- 
ties ;  thirdly,  the  same  amounts  of  goods  have  differ- 
ent values  to  different  individuals ;  fourthly,  in  many 
cases  inequality,  though  not  based  on  differences  in 
individual  merit,  is  socially  beneficial. 

The  foregoing  discussion  has  served  to  show  the 
invalidity  of  the  principle  of  absolute  equality  as  a 
canon  of  distributive  justice,  whether  viewed  from 
the  idealistic  or  utilitarian  standpoint.  We  may, 
however,  in  addition,  call  attention  to  the  fact  that 
the  principle,  even  were  it  not  false  in  theory,  would 
be  practically  impossible  of  maintenance  in  practice. 

If  the  idea  of  absolute  equality  in  treatment  were 
accepted  as  the  governing  principle,  justice  would 
demand,  not  simply  that  the  distributive  shares  of  the 
products  should  be  equal,  but  that  the  work  by  which 
the  products  are  obtained  should  be  apportioned  by 
the  same  standard.  The  practical  incapacity  of 
any  governing  body  to  perform  this  task  is  clearly 
brought  out  by  J.  S.  Mill  in  one  of  his  essays.  "  It 
is  a  simple  rule,"  he  says,  '^  and  under  certain  aspects 
a  just  one,  to  give  equal  payment  to  all  who  share  in 
the  work.  But  this  is  a  very  imperfect  justice  unless 
the  work  also  is  apportioned  equally.    Now  the  many 


EQUALITY  75 

different  kinds  of  work  required  in  every  society  are 
very  unequal  in  hardness  and  unpleasantness.  To 
measure  these  against  one  another,  so  as  to  make 
quality  equivalent  to  quantity,  is  so  difficult  that 
communists  generally  propose  that  all  should  work 
by  turns  at  every  kind  of  labor.  But  this  involves 
an  almost  complete  sacrifice  of  the  economic  ad- 
vantages of  the  division  of  employments,  advan- 
tages which  are  indeed  frequently  overestimated  (or 
rather  the  counter  considerations  are  underestimated) 
by  political  economists,  but  which  are  nevertheless, 
in  the  point  of  view  of  productiveness  of  labor,  very 
considerable,  for  the  double  reason  that  the  coopera- 
tion of  employment  enables  the  work  to  distribute 
itself  with  some  regard  to  the  special  capacities  and 
qualifications  of  the  worker,  and  also  that  every 
worker  acquires  greater  skill  and  rapidity  in  one  kind 
of  work  by  confining  himself  to  it.  The  arrange- 
ment, therefore,  which  is  deemed  indispensable  to  a 
just  distribution  would  probably  be  a  very  consider- 
able disadvantage  in  respect  of  production.  But  fur- 
ther, it  is  still  a  very  imperfect  standard  of  justice  to 
demand  the  same  amount  of  work  from  every  one. 
People  have  unequal  capacities  of  work,  both  mental 
and  bodily,  and  what  is  a  light  task  for  one  is  an 
insupportable  burden  to  another.  It  is  necessary, 
therefore,  that  there  should  be  a  dispensing  power, 
an  authority  competent  to  grant  exemptions  from  the 
ordinary  amount  of  work,  and  to  proportion  tasks  in 
some  measure  to  capabilities.  As  long  as  there  are 
any  lazy  or  selfish  persons  who  like  better  to  be 


76  SOCIAL  JUSTICE 

worked  for  by  others  than  to  work,  there  will  be 
frequent  attempts  to  obtain  exemptions  by  favor 
or  fraud,  and  the  frustration  of  these  attempts  will 
be  an  affair  of  considerable  difficulty,  and  will  by 
no  means  be  always  successful."  ^ 

The  above  is,  of  course,  but  one  of  the  many  diffi- 
culties in  the  organization  and  administration  of  a 
communistic  society.  Such  other  evils  as  would  in- 
evitably arise  from  the  persistence  of  rivalries  for 
personal  reputation  and  power,  from  the  discourage- 
ment, or  at  least  lack  of  encouragement,  of  the 
higher  forms  of  activity,  from  the  loss  of  effective 
stimulus  to  industry  and  concentration  of  effort, 
from  undue  increase  of  population,  from  the  dul- 
ness  and  monotony  of  life  necessarily  attendant 
upon  a  scheme  of  absolute  equality,  —  such  evils  and 
many  others  suggest  themselves  at  the  very  first 
thought.  Despite  these  defects  and  difficulties,  how- 
ever. Mill,  in  his  Political  Economy,  makes  the  fol- 
lowing oft-quoted  declaration :  "  If,"  he  says,  "  the 
choice  were  to  be  made  between  communism  with 
all  its  chances,  and  the  present  state  of  society  with 
all  its  sufferings  and  injustices,  if  the  institution  of 
private  property  necessarily  carried  with  it,  as  a  con- 
sequence, that  the  produce  of  labor  should  be  appor- 
tioned as  we  now  see  it,  almost  in  an  inverse  ratio 
to  the  labor,  —  the  largest  portions  to  those  who  have 
not  worked  at  all,  the  next  largest  to  those  whose 
work  is  almost  nominal,  and  so  in  descending  scale, 
the    remuneration    dwindling    as    the   work   grows 

1  "  The  Difficulties  of  Socialism,"  Fortnightly  Review,  April,  1879. 


EQUALITY  77 

harder  and  more  disagreeable,  until  the  most  fatigu- 
ing and  exhausting  bodily  labor  cannot  count  with 
certainty  on  being  able  to  earn  even  the  necessaries 
of  life,  —  if  this,  or  communism,  were  the  alterna- 
tive, all  the  difficulties,  great  or  small,  of  communism 
would  be  but  as  dust  in  the  balance.  But  to  make 
the  comparison  applicable,  we  must  compare  com- 
munism at  its  best  with  the  regime  of  individual 
property,  not  as  it  is,  but  as  it  might  be  made.  The 
principle  of  private  property  has  never  yet  had  a  fair 
trial  in  any  country."  ^ 

The  idea  of  Equality  being  repudiated  as  an 
abstract  principle  of  justice,  the  true  principle  or 
principles  of  desert  must  be  found  in  the  idea  of 
Proportionality ;  that  is,  in  the  proportioning  of  re- 
wards in  each  particular  case  according  to  some 
ascertainable  conditions  of  time,  place,  or  person. 
The  different  canons  of  justice  that  have  been 
based  upon  this  idea  we  shall  presently  consider. 
Pirst,  however,  we  must  examine  the  idea  of  property. 

1  Book  II,  Chapter  I. 


CHAPTER  IV 

PKOPERTY 

The  idea  of  property  lies  at  the  very  basis  of  the 
political,  legal,  and  economic  sciences.  In  economic 
science,  dealing  largely  with  exchange  values,  the 
idea  of  ownership  is  involved  in  almost  all  of  its 
reasonings,  and  implied  in  all  of  its  laws.  In  juris- 
prudence, with  its  rules  directed  to  the  regulation 
of  the  rights  arising  out  of  the  quiet  possession  and 
enjoyment  of  articles  of  value,  the  idea  of  owner- 
ship is  still  more  fundamental.  While  in  political 
science  the  protection  of  property  is  ranked  along 
with  protection  of  person  as  one  of  the  chief  pur- 
poses for  which  government  exists.  It  is  the  aim 
of  this  chapter  to  examine  somewhat  carefully  this 
idea  of  ownership,  in  order  that  we  may  discover 
both  the  real  meaning  of  the  conception,  and  the 
ethical  justification,  if  there  be  one,  for  permitting 
particular  individuals  to  exercise  exclusive  rights 
over  objects  of  value. 

In  tracing  the  history  of  theories  of  property 
we  find  that  the  right  of  ownership  has  been  based 
by  different  writers  upon  a  variety  of  abstract 
principles.      The  chief  of  these  have  been  those  of 

78 


PROPERTY  79 

first  occupancy,  law,  labor  performed,  and  needs. 
Whether  it  be  proper  to  accept  any  one  of  these 
as  absolutely  valid,  we  shall  now  consider. 

Occupation  Theory.  —  This  is  a  theory  which, 
strictly  interpreted,  means  that  he  who  first  gains 
actual  possession  of  an  article  of  value  should  be 
considered  its  rightful  owner,  and  should  not  be  dis- 
turbed by  others  in  its  possession  or  enjoyment.  In 
a  settled  society,  where  practically  every  article  of 
value,  which  is  susceptible  of  private  appropriation, 
has  been  taken  possession  of  by  some  one,  the  occu- 
pation theory  has  obviously  little  opportunity  for 
application.  As  a  matter  of  fact  the  theory  has 
mainly  been  held  to  explain  how,  in  a  state  of 
nature,  it  was  possible  for  private  property  rights 
to  be  created  which  it  was  the  moral  duty  of  men  to 
respect.  Even  there,  however,  the  theory  has  been 
held  as  applicable  only  to  those  articles  of  value 
which  are  considered  the  direct  gifts  of  God  or 
nature.  The  right  of  the  individual  to  that  which 
he  has  made  by  his  own  labor  is  not  denied,  but  the 
right  to  the  material  upon  which  his  labor  is  ex- 
pended has  been  based  upon  the  fact  of  his  first 
taking  possession  of  it. 

As  would  naturally  be  expected,  we  find  the  occu- 
pation theory  especially  dwelt  upon  by  those  writers 
who  have  founded  their  ethical  and  political  systems 
upon  the  idea  of  an  original  state  of  nature.  A  typ- 
ical view  is  that  of  Grotius.  "  God  gave  the  human 
race  generally  a  right  to  the  things  of  a  lower 
nature,"  says  Grotius.     "...  Everything  was  com- 


80  SOCIAL   JUSTICE 

mon  and  undivided,  as  if  all  had  one  patrimony. 
Hence  each  man  might  take  for  his  use  what  he 
would,  and  consume  what  he  could.  What  each  one 
had  taken,  another  could  not  take  from  him  by  force 
without  wrong.  Cicero  compares  this  state  of  things 
to  the  theatre,  which,  though  it  be  common,  yet 
when  a  man  has*  taken  any  place  it  is  his.  And  this 
state  might  have  continued  if  man  had  remained  in 
great  simplicity,  or  had  lived  in  great  mutual  good- 
will. In  sacred  history  we  learn  why  it  was  that 
men  departed  from  the  community  of  things,  first  of 
movables,  then  of  immovables ;  namely,  because 
when  they  were  not  content  to  feed  on  spontaneous 
produce,  to  dwell  in  caves,  to  go  naked  or  clothed  in 
bark  or  in  skins,  but  had  sought  a  more  exquisite 
kind  of  living,  there  was  need  of  industry,  which 
particular  individuals  might  employ  on  particular 
things.  And  as  to  the  common  use  of  the  fruits 
of  the  earth,  it  was  prevented  by  the  dispersion  of 
men  into  different  localities,  and  by  the  want  of 
justice  and  kindness  which  interfered  with  a  fair 
division  of  labor  and  sustenance.  And  thus  we 
learn  how  things  became  Property ;  not  by  one  act 
of  the  mind  alone :  for  one  party  could  not  know 
what  another  party  wished  to  have  for  its  own,  so 
as  to  abstain  from  that ;  and  several  parties  might 
wish  for  the  same  thing ;  but  by  a  certain  fact, 
either  expressed,  as  by  division,  or  tacit,  as  by  occu- 
pation :  for  as  soon  as  community  was  given  up,  and 
while  division  was  not  instituted,  it  must  be  supposed 
to  have  been  a  matter  of  agreement  among  all,  that 


PROPERTY  81 

what  each  had  occupied  he  should  have  for  his 
own. 

Here,  as  seen,  occupation  is  conceived  to  create 
the  ethical  right  to  ownership,  the  idea  of  a  contract, 
tacit  or  expressed,  being  introduced  only  to  render 
fixed  and  secure  the  particular  rights  that  have 
arisen.  That  is  to  say,  the  right  of  private  possession 
and  use  is  created  by  occupation,  and  by  contract 
this  is  transformed  into  property. 

The  views  of  Grotius  are  substantially  reproduced 
by  Puffendorf,  Wolff,  Vattel,  and  Burlamaqui. 

Rousseau  gives  only  a  qualified  adherence  to  the 
occupation  theory.  Thus  he  says :  "  The  right  of 
the  first  occupant,  although  more  real  than  that  of 
the  strongest,  does  not  become  a  true  right  until 
after  the  establishment  of  that  of  ownership.  Every 
man  has  naturally  a  right  to  everything  that  is 
necessary  to  him,  but  the  positive  act  which  makes 
him  proprietor  of  certain  property  excludes  him  from 
the  rest.  His  part  being  taken,  he  must  limit  himself 
to  it,  and  has  no  further  right  to  the  community. 
...  In  general,  to  authorize  the  right  of  the 
first  occupant  upon  any  territory,  the  following  con- 
ditions are  necessary  :  first,  that  the  land  shall  never 
have  been  occupied ;  second,  that  only  such  a  quan- 
tity be  occupied  as  will  be  necessary  for  subsistence ; 
third,  that  it  be  taken  possession  of  not  by  an  empty 
ceremony,  but  by  labor  and  cultivation,  the  only  sign 
of  ownership  which,  in  default  of  legal  title,  should 

^  The  Laws  of  War  and  Peace,  Whewell  translation,  Book  II, 
Chapter  II,  section  2,  paragraphs  1,  4,  and  5. 


82  SOCIAL   JUSTICE 

be  respected  by  others.  In  fact,  in  according  to 
necessity  and  labor  the  right  of  the  first  occupant, 
is  it  not  going  as  far  as  would  be  justifiable?"^ 

Criticism  of  the  Occupation  Theory.  —  So  far  as 
the  theory  is  dependent  upon  the  postulation  of 
rights  in  a  completely  non-social  and  non-civil  state, 
it  is  of  course  subject  to  the  general  criticisms  which 
may  be  made  to  such  a  premise.  But  that  which  is 
absolutely  decisive  as  to  the  invalidity  of  the  occu- 
pation theory  is  that  it  selects  as  a  basis  for  a  right 
a  fact  that  may  be,  and  in  truth  often  is,  brought 
about  by  simple  chance,  fraud,  or  open  force.  Where 
first  occupancy  has  been  due  to  any  or  all  of  these 
agencies,  surely  no  moral  right  can  be  created.^  If 
this  be  so,  then,  if  for  no  other  reason,  simple 
occupation  cannot  be  accepted  as  an  abstract  prin- 
ciple of  right.  Finally,  it  is  to  be  observed  that 
that  for  which  we  are  seeking  is  a  principle  of  dis- 
tributive justice  applicable  to  conditions  as  they  now 
are.  The  occupation  theory,  even  if  accepted,  so  far 
from  furnishing  a  standard  for  the  correction  of 
present  distributive  injustices,  renders  it  absolutely 
impossible,  except  in  the  rarest   cases,  to   ascertain 

^  The  Social  Contract,  Book  I,  Chapter  IX. 

2  At  first  thought  it  may  seem  that  a  moral  right  to  property  may 
sometimes  be  brought  about  by  simple  chance,  as,  for  example,  where 
a  man  accidentally  stumbles  upon  a  rare  gem  in  an  uninhabited  desert. 
The  utility  of  providing  that,  under  such  circumstances,,  the  article 
found  shall  be  the  property  of  the  finder,  is  ordinarily  apparent. 
Apart,  however,  from  the  need  of  some  rule  which  shall  determine 
ownership  in  such  cases,  and  especially  of  one  which,  at  the  same 
time,  will  stimulate  men's  alertness,  one  cannot  see  that  any  moral 
rights  have  been  created;  that  is,  rights  which  may  not  be  set  aside 
if  some  other  and  stronger  considerations  of  utility  arise. 


PROPERTY  83 

the  rightfulness  of  any  proprietary  rights  whatever. 
For  it  is  clearly  impossible,  as  to  almost  all  forms 
of  wealth,  to  discover  who  were  the  first  occupants, 
and  from  them  to  trace  by  legitimate  transfer  or 
descent  the  persons  now  entitled  to  ownership. 

The  Legal  Theory.  — There  are  a  number  of  writers 
who  have  quite  generally  been  credited  with  the 
theory  that  the  civil  law  is  able  to  furnish  not  only 
the  legal,  but  the  ethical,  basis  for  the  institution  of 
property.  Among  these  are  Montesquieu,  Hobbes, 
Bentham,  and  Rousseau.  Upon  first  inspection,  the 
language  of  these  writers  does  seem  to  warrant  the 
opinion  that  this  is  their  view.  When  the  thought 
is  carefully  analyzed,  however,  it  will  be  found, 
we  think,  that  a  different  construction  is  not  only 
possible,  but  required. 

Montesquieu  asserts :  "  Just  as  men  abandoned 
their  natural  independence  to  live  under  political 
laws,  they  renounced  their  natural  community  of 
goods  to  live  under  civil  laws.  By  the  first,  they 
acquired  liberty;  by  the  second,  property."  As  a 
statement  of  the  origin  of  property  as  a  legal  insti- 
tution, objection  cannot,  perhaps,  be  made  to  this. 
But  when  we  read  farther,  it  seems  as  though  Mon- 
tesquieu believed  that  the  mere  fact  that  a  property 
right  has  been  once  established  by  law  is  sufficient 
reason  why,  as  a  matter  of  justice,  it  should  never 
be  disturbed.  Thus  he  says  :  *'  Cicero  maintains  that 
the  agrarian  laws  were  unjust,  because  the  com- 
munity was  established  with  no  other  view  than  that 
every  one  might  be  able  to  preserve  his  property. 


84  SOCIAL   JUSTICE 

Let  us,  therefore,  lay  down  a  certain  maxim,  that 
whenever  the  pubhc  good  happens  to  be  the  matter 
in  question,  it  is  not  for  the  advantage  of  the  public 
to  deprive  an  individual  of  his  property,  or  even  to 
retrench  the  least  part  of  it  by  a  law  or  a  political 
regulation.  In  this  case  we  should  follow  the  rigor 
of  the  civil  law,  which  is  the  palladium  of  property."^ 

Properly  construed,  however,  there  is  no  assertion 
in  the  above  that  in  the  ipse  dixit  of  the  law  is  to  be 
found  the  ethical  justification  of  property.  That 
which  is  declared  is  simply  that,  so  important  is  it  in 
social  and  political  life  that  property  rights  should  be 
preserved,  a  case  cannot  be  conceived  in  which,  for 
the  sake  of  securing  some  other  public  good,  it  will 
be  wise  to  destroy  ownership  as  secured  by  law.  As 
Montesquieu  elsewhere  says,  "  The  public  good  con- 
sists in  every  one's  having  his  property,  which  was 
given  him  by  the  civil  law,  invariably  preserved." 

Hobbes's  views  as  to  property  much  resemble  those 
of  Montesquieu.  "  For  where  there  is  no  common- 
wealth," he  says,  ''  there  is,  as  hath  been  already 
shown,  a  perpetual  war  of  every  man  against  his 
neighbor,  and  therefore  everything  is  his  that  getteth 
it,  and  keepeth  it  by  force ;  which  is  neither  '  pro- 
priety'nor 'community' ;  but 'uncertainty.'  Which 
is  so  evident  that  even  Cicero,  a  passionate  defender 
of  liberty,  in  a  public  pleading,  attributeth  all  pro- 
priety to  the  civil  law.  '  Let  the  civil  law,'  saith  he, 
'  be  once  abandoned,  or  but  negligently  guarded,  not 
to  say  oppressed,  and  there  is  nothing  that  any  man 

^Spirit  of  Laws,  Book  XXVI,  Chapter  XV. 


PROPERTY  85 

can  be  sure  to  receive  from  his  ancestor,  or  leave  to 
his  children/  and  again,  '  Take  away  the  civil  law, 
and  no  man  knows  what  is  his  own,  and  what 
another  man's.'  Seeing,  therefore,  the  introduction 
of  '  propriety '  is  an  effect  of  commonwealth,  which 
can  do  nothmg  but  by  the  person  that  represents  it, 
it  is  the  act  only  of  the  sovereign ;  and  consisteth  in 
the  laws,  which  none  can  make  that  have  not  the 
sovereign  power."  ^ 

Hobbes,  in  effect,  founds  his  doctrine  of  absolute 
obedience  to  any  de  facto  government  upon  the  utili- 
tarian ground  that,  so  vital  to  man's  happiness  is  the 
existence  of  a  political  order,  any  act,  the  tendency  of 
which  is  to  disturb  that  order,  must  be  inimical,  not 
only  to  the  weKare  of  all,  but  to  the  true  good  of  the 
individual  or  the  individuals  committing  it.  Such  an 
act  he  therefore  declares  to  be  not  simply  legally,  but 
morally  wrong,  for,  as  he  holds,  it  is  man's  ethical 
duty  to  seek  his  own  happiness.  Hobbes  does  not 
deny  that  particular  laws,  taken  by  themselves,  may 
be  unwise  or  even  unjust,  but,  he  declares,  that,  in  the 
first  place,  few  individuals  are  capable  of  judging 
correctly  and  impartially  as  to  the  wisdom  or  equity 
of  a  law ;  and,  in  the  second  place,  even  if  this  were 
not  so,  it  is  impossible  to  abstract  a  given  law  from 
the  general  body  of  sovereign  commands,  or  to  refuse 
obedience  to  it,  without  at  the  same  time  weakening, 
to  that  extent,  the  general  habit  of  political  obedi- 
ence. But,  so  transcendently  important  is  it  that 
this  general  spirit  of  political  subordination  should 

^  Leviathan,  Chapter  XXIV. 


86  SOCIAL  JUSTICE 

not  be  lessened  or  destroyed,  no  evil  which  a  gov- 
ernor or  a  law  can  do  will  be  equal  to  the  harm 
which  will  follow  from  a  diminution  of  political 
authority.  Hobbes  holds,  therefore,  as  a  logical  con- 
sequence, that  the  dictum  of  the  law  should,  in  every 
case,  be  accepted  by  the  citizen  as  binding  upon  him 
both  morally  and  legally. 

It  is  upon  these  premises  that  Hobbes  declares 
that  it  is  not  necessary  to  go  behind  the  dictum  of 
the  law  for  a  justification  of  property.  Property  as  a 
legal-institution  is  to  be  respected  for  the  same  reason 
that  all  legal  institutions  are  to  be  respected,  because 
they  are  supported  by  the  State,  and  any  attack 
upon  them  is,  to  that  extent,  an  attack  upon  the  State 
itself. 

When  we  turn  to  the  views  of  Bentham  we  find 
much  the  same  ground  taken,  except  that  Bentham 
by  no  means  admits  that  the  need  of  avoiding  even 
the  first  steps  toward  anarchy  is  so  absolute  that  no 
circumstances  can  be  conceived  in  which  a  violation 
of  a  legal  command  will,  upon  utilitarian  grounds,  be 
ethically  justifiable.  The  general  beneficence  of  the 
laws  which  secure  men  in  the  possession  of  their 
property  is,  however,  fully  recognized  by  him.  The 
following  quotation  from  his  Principles  of  the  Civil 
Code  presents  his  position  so  fully  that  little  com- 
ment will  be  necessary.  "  The  idea  of  property,"  he 
says,  "  consists  in  an  established  expectation ;  in  the 
persuasion  of  being  able  to  draw  such  or  such  an 
advantage  from  the  thing  possessed,  according  to  the 
nature  of  the  case.     Now  this  expectation,  this  per- 


PEOPERTY  87 

suasion,  can  only  be  the  work  of  law.  I  cannot 
count  upon  the  enjoyment  of  that  which  I  regard  as 
mine,  except  through  the  promise  of  the  law  which 
guarantees  it  to  me.  It  is  the  law  alone  which  per- 
mits me  to  forget  my  natural  weakness.  It  is  only 
through  the  protection  of  the  law  that  I  am  able  to 
enclose  a  field  and  to  give  myself  up  to  its  cultivation 
with  the  sure,  though  distant,  hope  of  harvest.  But 
it  may  be  asked,  What  is  it  that  serves  as  a  basis  to 
law  upon  which  to  begin  operations  when  it  adopts 
objects  which  under  the  name  of  property  it  promises 
to  protect  ?  Have  not  men  in  a  primitive  state  a 
natural  expectation  of  enjoying  certain  things  —  an 
expectation  drawn  from  sources  anterior  to  law? 
Yes.  There  have  been  from  the  beginning,  and  there 
always  will  be,  circumstances  in  which  a  man  may 
secure  himself,  by  his  own  means,  in  the  enjoyment 
of  certain  things.  But  the  catalogue  of  these  cases 
is  very  limited.  The  savage  who  has  killed  a  deer 
may  hope  to  keep  it  for  himself  so  long  as  his  cave  is 
undiscovered,  so  long  as  he  watches  to  defend  it,  and 
is  stronger  than  his  rivals;  but  that  is  all.  How 
miserable  and  precarious  is  such  a  possession !  If 
we  suppose  the  least  agreement  among  savages  to 
respect  the  acquisitions  of  each  other,  we  see  the 
introduction  of  a  principle  to  which  no  name  can  be 
given  but  that  of  law.  A  feeble  and  momentary 
expectation  may  result  from  time  to  time  from  cir- 
cumstances purely  physical ;  but  a  strong  and  perma- 
nent expectation  can  result  only  from  law.  That 
which  in  the  natural  state  was  an  almost  invisible 


88  SOCIAL  JUSTICE 

thread,  in  the  social  state  becomes  a  cable.  Property 
and  law  are  born  together  and  die  together.  Before 
laws  were  made  there  was  no  property ;  take  away 
laws  and  property  ceases."^ 

Here  we  have  luminously  and  exactly  set  forth  the 
part  played  by  law  in  the  creation  and  maintenance 
of  property.  The  only  criticism  that  may  be  made 
is  that  it  is  not  made  sufficiently  plain  that  the  whole 
idea  or  meaning  of  property  is  not  summed  up  in  its 
legal  character.  Private  ownership  of  property  may 
exist,  not  only  as  a  moral  right,  but  as  a  concrete  fact, 
without  the  support  of  law.^ 

The  theories  of  Rousseau  as  to  the  nature  of  prop- 

1  Op.  ciL,  Chapter  VIII. 

2  There  is  thus  considerable  force  in  the  criticism  which  M.  Charles 
Comte  makes  when  he  says :  "  According  to  Montesquieu  and  Bentham 
it  is  civil,  laws  which  give  rise  to  property,  and  it  is  clear  that  both 
mean  by  civil  laws  the  decrees  of  public  power  which  determine  the 
possessions  which  each  one  may  enjoy  and  dispose  of.  It  would,  per- 
haps, be  more  correct  to  say  that  it  is  property  which  gave  birth  to 
civil  laws  ;  for  it  is  hard  to  see  what  need  a  tribe  of  savages,  among 
whom  no  property  of  any  kind  existed,  could  have  for  laws  or  of  a 
government.  The  guarantee  of  property  is  undoubtedly  one  of  the 
most  essential  elements  of  which  it  is  composed ;  it  increases  the  value 
of  property,  and  assumes  its  duratioii.  A  great  mistake  would  be  made, 
however,  were  it  supposed  that  this  guarantee  were  all  there  is  of 
property ;  the  civil  law  furnishes  the  guarantee  of  property,  but  it 
is  human  industry  which  gives  birth  to  property.  Public  authority 
is  needed  only  to  protect  it  and  assure  to  all  the  power  of  enjoying 
and  disposing  of  it.  .  .  .  Were  it  true  that  property  exists  or  is  created 
by  decrees  and  the  protection  of  public  authority,  it  would  follow  that 
the  men  who,  in  any  country,  were  invested  with  the  power  of  legisla- 
tion, would  also  be  invested  with  the  power  of  creating  property  by 
their  decrees,  and  could,  without  committing  injury  to  the  right  of 
property,  despoil  some  persons  of  it  to  the  advantage  of  others.  They 
would  have  no  other  rules  to  follow  than  their  own  desires  or  ca- 
prices." Quoted  in  Lalor's  Cyclopcedia  of  Political  Science;  article, 
"  Property." 


PROPERTY  89 

erty  and  its  justification  are  contained  in  the  follow- 
ing extracts  from  his  Social  Contract.  "  What  man 
loses  by  the  social  contract  \ix.  hj  the  establishment  of 
political  government],"  he  says,  "  is  his  natural  liberty 
and  an  unlimited  right  to  anything  that  tempts  him 
which  he  can  obtain ;  what  he  gains  is  civil  liberty  and 
the  ownership  of  all  that  he  possesses.  Not  to  be 
deceived  in  these  compensations,  we  must  distin- 
guish the  natural  liberty,  which  has  no  limits  but 
the  strength  of  the  individual,  from  civil  liberty, 
which  is  limited  by  the  general  will ;  and  possession, 
which  is  only  the  ejffect  of  the  force  or  right  of  the 
first  occupant,  from  the  ownership  which  is  founded 
upon  a  positive  right.  Each  member  of  the  com- 
munity gives  himself  to  it,  as  soon  as  it  is  formed, 
such  as  he  then  is,  himself  and  all  his  force  of 
which  his  property  forms  a  part.  .  .  .  What  is 
singular  in  this  alienation  is  that,  so  far  from  de- 
spoiling the  individual,  in  accepting  his  property,  the 
community  assures  him  of  its  legitimate  possession, 
it  changes  usurpation  into  a  veritable  right,  and  en- 
joyment into  ownership.  The  owners  now  being 
considered  as  depositories  of  the  public  property, 
their  rights  being  respected  by  all  members  of  the 
state  and  maintained  by  all  their  force  against  the 
stranger,  —  by  a  transfer  which  is  advantageous  to 
the  public  and  more  so  to  themselves,  —  they  have,  so 
to  speak,  acquired  all  that  they  have  given.  .  .  ,  It 
might  happen,  too,  that  men  began  to  unite  together 
before  possessing  anything,  and  that,  taking  posses- 
sion of  a  territory  sufi&cient   for   all,  they  enjoy  it 


90  SOCIAL   JUSTICE 

in  common,  or  divide  it  among  themselves  either 
equally  or  in  proportions  established  by  the  sover- 
eign. In  whatever  way  the  acquisition  be  made, 
the  right  which  each  individual  has  over  his  own 
property  is  subordinated  to  the  right  which  the 
community  has  over  all ;  without  this  there  would 
be  neither  solidity  in  the  social  tie,  nor  real  force 
in  the  exercise  of  sovereignty."^ 

Here  it  is  quite  evident  that  in  founding  property 
upon  law  Rousseau  takes  practically  the  same  posi- 
tion that  Bentham,  Hobbes,  and  Montesquieu  have 
assumed;  namely,  that  it  is  only  as  an  institution 
made  secure  by  the  protection  of  the  political  au- 
thority that  the  foundation  of  property  is  to  be 
found  in  the  law.  In  fact,  as  Rousseau  goes  on  to 
maintain,  the  ethical  right  to  ownership  is  to  be 
found  in  occupation,  when  begun  and  maintained 
according  to  the  principles  which  he  lays  down. 
Of  this  we  have  already  spoken. 

The  general  beneficence*  of  the  law  in  guaranteeing 
to  owners  of  property  a  secure  possession  and  quiet 
enjoyment  is  so  obvious  that  few  there  are  who 
explicitly  deny  it.  Pure  anarchists  must,  however, 
be  considered  as  taking  this  position  ;  for  with  the 
abolition  of  all  political  control  law  disappears,  and 
with  it,  of  course,  all  legal  property  rights.  In  tak- 
ing this  position,  the  anarchists  are  not  necessarily 
led  to  advocate  the  destruction  of  private  property 
rights  in  an  ethical  sense.  Their  contention  only 
goes  to  the  length  of   maintaining   that   the    coer- 

1  Op.  cit.,  Book  I,  Chapters  VIII  and  IX. 


PROPERTY  91 

cive  authority  of  the  law  is  not  needed  for  their 
maintenance.  This,  they  hold,  may  be  secured  by 
mutual  agreement  and  cooperation. 

Besides  the  anarchists,  there  have  been  some 
writers  who  have  taken  the  extreme  position  of 
holding  that,  so  wholly  are  the  laws  which  protect 
private  ownership  in  the  interest  of  the  property 
owning  classes,  it  would  be  better  for  the  property- 
less  classes  did  no  legal  property  rights  whatever 
exist.  The  argument  is  that  only  those  derive 
benefit  from  the  law's  protection  who  own  property, 
and  that  thus  the  propertyless  not  only  secure  no 
benefit,  but  are  prevented  by  the  law  from  exercising 
those  natural  rights  of  acquiring  riches  by  occupation 
or  force  which  they  would  have  in  a  non-civic  state. 
Thus  Rousseau  says  in  the  same  chapter  from  which 
we  have  quoted  above,  "  I  will  finish  this  chapter 
and  this  book  by  a  statement,  which  must  serve  as 
a  basis  of  all  social  systems ;  it  is  that,  instead  of 
destroying  natural  equality,  the  fundamental  com- 
pact substitutes,  on  the  contrary,  a  moral  legitimate 
equality  for  that  which  nature  may  have  given  of 
physical  inequality  among  men ;  and  while  they 
may  be  unequal  in  strength  or  genius,  they  become 
equal  by  agreement  and  right."  But  he  adds  in  a 
note,  "Under  bad  governments  this  equality  is  only 
apparent  and  illusory ;  it  serves  only  to  maintain  the 
poor  in  misery  and  the  rich  in  his  usurpation.  In  fact 
laws  are  always  useful  to  those  who  possess,  and  inju- 
rious to  those  who  have  nothing,  from  which  it  follows 
that  the  social  state  is  advantageous  to  man  only  when 


92  SOCIAL   JUSTICE 

he  has  some  property,  and  that  no  one  has  too  much." 
Thus  also  Adam  Smith,  m  his  Wealth  of  Nations,  says, 
"Civil  government,  so  far  as  it  is  instituted  for  the 
security  of  property,  is  in  reality  instituted  for  the 
defence  of  the  rich  against  the  poor,  or  of  those  who 
have  some  property  against  those  who  have  none  at 
all."  1 

If  we  are  to  understand,  as  indeed  it  would  seem 
we  must  understand,  that  Rousseau  and  Smith  held 
that  it  is  disadvantageous  to  the  propertyless  that 
any  legal  property  rights  whatever  should  be  recog- 
nized, an  answer  is  easily  made.  This  has  been 
done  by  Bentham  in  one  of  the  few  passages  where 
he  departs  from  his  usual  dryness  and  prolixity  of 
style,  and  rises  to  fervor  and  actual  eloquence. 
"  But  perhaps,"  he  says,  "  [it  may  be  alleged  that] 
the  laws  of  property  are  good  for  those  who  have 
property,  and  oppressive  to  those  who  have  none. 
The  poor  man,  perhaps,  is  more  miserable  than  he 
w^ould  be  without  laws."  To  which  Bentham  replies, 
"  The  laws,  in  creating  property,  have  created 
riches  only  in  relation  to  poverty.  Poverty  is  not 
the  work  of  laws ;  it  is  the  primitive  condition  of 
the  human  race.  The  man  who  subsists  only  from 
day  to  day  is  precisely  the   man   of   nature  —  the 

^  Op.  cit.,  Book  V,  Chapter  I.  Rousseau,  in  his  essay  on  the  Origin  of 
Inequality,  says  :  "  The  first  man  who  enclosed  a  piece  of  land  and  said, 
'  This  is  mine,'  and  found  people  simple  enough  to  believe  him,  was  the 
real  founder  of  the  bourgeoisie.  How  much  misery,  crime,  war,  etc., 
would  have  been  prevented  if  another  man  had  had  the  courage  to 
pull  out  the  posts  and  had  said,  '  Take  care,  cheat !  You  are  lost  the 
moment  you  forget  that  the  fruits  of  the  earth  belong  to  all  and  the 
earth  itself  to  no  one  !  " 


PROPERTY  93 

savage.  The  poor  man,  in  civilized  society,  obtains 
nothing,  I  admit,  except  by  painful  labor ;  but,  in  the 
natural  state,  can  he  obtain  anything  except  by  the 
sweat  of  his  brow  ?  Has  not  the  chase  its  fatigues, 
fishing  its  dangers,  and  war  its  uncertainties  ?  And  if 
man  seems  to  love  this  adventurous  life ;  if  he  has  an 
instinct  warm  for  this  kind  of  perils ;  if  the  savage 
enjoys  with  delight  an  idleness  so  dearly  bought ;  must 
we  then  conclude  that  he  is  happier  than  our  cultiva- 
tors? No.  Their  labor  is  more  uniform,  but  their 
reward  is  more  sure ;  the  woman's  lot  is  far  more  agree- 
able ;  childhood  and  old  age  have  more  resources ;  the 
species  multiplies  in  a  proportion  a  thousand  times 
greater,  —  and  that  alone  suffices  to  show  on  which 
side  is  the  superiority  of  happiness.  Thus  the 
laws,  in  creating  riches,  are  the  benefactors  of 
those  who  remain  in  the  poverty  of  nature.  All 
participate  more  or  less  in  the  pleasures,  the  advan- 
tages, and  the  resources  of  civilized  society.  The 
industry  and  the  labor  of  the  poor  place  them  among 
the  candidates  of  fortune.  And  have  they  not  the 
pleasure  of  acquisition  ?  Does  not  hope  mix  with 
their  labors  ?  Is  the  security  which  the  law  gives 
of  no  importance  to  them?  It  is  astonishing  that 
a  writer  so  judicious  as  Beccaria  has  interposed,  in 
a  work  dictated  by  the  soundest  philosophy,  a  doubt 
subversive  of  social  order.  '  The  right  of  property,' 
he  says,  'is  a  terrible  right,  which  perhaps  is  not 
necessary.'  Tyrannical  and  sanguinary  laws  have 
been  founded  upon  that  right ;  it  has  been  frightfully 
abused;   but  the  right  itself  presents  only  ideas  of 


94  SOCIAL  JUSTICE 

pleasure,  abundance,  and  security.  It  is  that  right 
which  has  vanquished  the  natural  aversion  to  labor ; 
■which  has  given  to  man  the  empire  of  the  earth ; 
which  has  brought  to  an  end  the  migratory  life  of 
nations ;  which  has  produced  the  love  of  country,  and 
a  regard  for  posterity.  Men  universally  desire  to  enjoy 
speedily,  to  enjoy  without  labor.  It  is  that  desire 
which  is  terrible ;  since  it  arms  all  who  have  not 
against  all  who  have.  The  law  which  restrains  that 
desire  is  the  noblest  triumph  of  humanity  over  itself."  ^ 

In  effect,  then,  Bentham  makes  the  following 
points :  First,  that,  though  it  is  true  that  the  law 
renders  it  possible  for  a  wealthy  class  to  exist  side 
by  side  with  a  propertyless  class,  the  latter  class 
does  not  owe  its  poverty  to  the  law.  Without  the 
law  all  would  be  poor.  Thus,  while  those  who  by 
talent  or  good  fortune  have  become  wealthy  owe 
ultimately  their  riches  to  the  law,  this  is  not  at  the 
expense  of  the  poor,  who  at  least  have  no  less  than 
they  would  have  liad  in  a  state  of  nature.  Secondly, 
that  not  only  is  property  law  not  prejudicial  to  the 
interests  of  the  propertyless  man,  but  it  is  positively 
beneficial  to  him,  in  that  it  offers  to  him  at  least  an 
opportunity  for  gaining  wealth  in  all  its  forms. 

It  will,  perhaps,  be  worth  while  to  follow  out 
more  fully  this  idea.  There  can  be  no  doubt  but 
that  the  existence  of  legal  property  has  been  enor- 
mously influential  in  stimulating  men's  productive  ac- 
tivities, and  that  around  property  rights  have  centred 
many  of  the  elements  that  have  been  most  influential 

1  Principles  of  the  Civil  Code,  Chapter  IX. 


PROPERTY  95 

in  promoting  morality,  good  government,  and  civili- 
zation. Nor  can  it  be  questioned  that,  in  the  ad- 
vance of  society  to  higher  economic  and  ethical 
planes,  the  propertyless  man,  the  ordinary  wage 
laborer,  has,  in  general,  had  his  condition  improved. 
It  is  a  question,  to  be  sure,  whether,  in  this  develop- 
ment, he  has  shared  to  an  equal  degree  with  the  well- 
to-do.  Some  have  held  that,  relatively,  the  rich 
have  derived  the  greater  benefit.  However  this  may 
l)e,  the  evidence  is  conclusive  that  the  laboring  man 
has  profited  absolutely.  If,  then,  this  be  so,  the 
conclusion  follows  that  in  so  far  as  legal  property 
rights  have  been  influential  in  promoting  economic 
progress  or  general  civilization,  and  in  so  far  as  the 
laboring  man  has  profited  absolutely  by  such  prog- 
ress, to  that  extent  he  must  have  gained  by  the  fact 
"that  property  has  existed  as  a  legal  institution. 

It  is  to  be  observed,  now,  that  the  argument,  as 
thus  far  carried  on,  establishes  only  the  point  that, 
to  the  propertied  and  propertyless  man  alike,  it  is  an 
advantage  that  property  rights  should  be  recognized 
and  protected.  There  has  not  been  established  any 
fact  as  to  the  extent  to  which  private  property  rights 
should  exist.  Nor  has  there  been  established  any- 
thing to  show  that  the  propertyless  man  has  secured 
in  the  past  all  the  advantages  which  legitimately 
should  have  been  his.  It  has  not  been  demonstrated 
that,  in  return  for  the  protection  which  the  law  gives, 
the  property  owning  classes  have  done,  or  been  com- 
pelled to  do,  all  that  they  should  have  done  for  the 
promotion  of  the  welfare  of  the  social  whole. 


96  SOCIAL  JUSTICE 

It  is  worthy  of  remark,  however,  that  in  most  of 
the  civilized  countries  of  to-day  efforts  are  being  made 
to  obtain  from  property  owners  services  commensurate 
with  the  special  advantages  they  enjoy.  Not  only  are 
deliberate  and  far-reaching  legislative  attempts  being 
made  to  place  upon  the  wealthy  classes  increasing 
social  and  fiscal  obligations,  but  strenuous  endeavors 
are  being  put  forth  to  assist  in  every  possible  way 
propertyless  men  in  their  attempts  to  gain  a 
share  in  the  world's  wealth.  The  imposition  of 
heavy  poor  rates  and  progressive  income  and 
inheritance  taxes,  the  enactment  of  a  host  of  laws 
for  the  protection  of  labor,  the  establishment  of 
all  sorts  of  public  and  charitable  institutions,  the 
provision  of  manual  training  schools,  etc.,  illus- 
trate this.  In  some  cases  the  measures  adopted 
have  been  of  so  radical  a  character  as  to  amount  to 
practical  spoliations  of  the  rich.  Professor  Foxwell, 
indeed,  after  referring  to  the  paragraph  which  we 
have  quoted  above  from  Adam  Smith,  adds  in  a  note  : 
"  This  view  of  government  explains  the  position  of 
the  anarchists,  so  far  as  anarchism  is  intelligible  at 
all.  But  it  is  clearly  inappropriate  to  modern  con- 
ditions. It  might  as  truly  be  said  of  some  demo- 
cratic governments  of  to-day  that  they  are  a 
machinery  by  which  those  who  have  less  property 
may  compensate  themselves  at  the  expense  of  those 
who  have  more.     The  tables  have  been  turned." 

This  we  think,  however,  is  an  extreme  statement. 
Even  in  those  countries  where  legislation  has  been 
of  the  most  radical  character,  the  laws  adopted  have 


PBOPEETY  97 

been,  after  all,  but  individual  measures,  and  have  left 
undisturbed  the  great  body  of  property  law,  the 
specific  object  of  which  is  the  maintenance  of  pri- 
vate property  rights  in  the  strictest  and  most  techni- 
cal manner. 

There  is  no  one  who  would  maintain  that  in  any 
civilized  society  all  property  should  be  owned  and 
controlled  by  private  individuals.  Even  the  most 
extreme  individualists  or  anarchists  recognize  the 
necessity  of  having  certain  articles  of  value  owned 
in  common,  such,  for  instance,  as  the  land  upon 
which  the  streets  of  a  city  are  laid  out.  On  the 
other  hand,  there  are  none  who  assert  that  all  forms 
of  wealth  should  be  publicly  owned.  It  is  recog- 
nized by  all  that  at  least  certain  articles  of  con- 
sumption should  belong  to  the  individuals  who  are 
to  use  or  consume  them.  The  communists  carry 
the  idea  of  public  property  to  its  extreme,  but  even 
they  recognize  this.  The  socialists  of  course  recog- 
nize in  many  ways  the  rightfulness,  as  well  as  the 
economic  expediency,  of  private  property.  The 
essential  demand  of  the  socialist  goes,  in  fact,  no 
farther  than  to  ask  that  all  "  instruments  for  pro- 
duction "  be  commonly  owned  and  operated.  All 
other  forms  of  wealth  they  admit  should  be  pri- 
vately owned. 

If,  then,  it  is  not  a  question  whether  all  property 
should  be  public  or  all  private,  the  problem  narrows 
itself  to  the  determination  of  what  property  shall 
be  public  and  what  private.  In  this  inquiry  the 
two  considerations    of    fundamental   importance  are 


98  SOCIAL  JUSTICE 

productive  efficiency  and  distributive  justice.  There 
is  no  essential  reason  why  these  two  considerations 
should  ever  antagonize  one  another.  Other  things  _ 
being  equal,  that  form  of  ownership  which  leads  to 
the  greatest  economic  productivity  is  most  desirable, 
because,  aside  from  more  material  reasons,  the  greater 
the  wealth  of  a  community,  the  greater  is  the  oppor- 
tunity offered  for  those  forms  of  individual  culture 
through  which  alone  the  higher  planes  of  ethical 
development  are  attainable.  Also,  when  we  remem- 
ber that  the  individual  should  seek  his  own  good 
in  the  good  of  the  whole,  and,  therefore,  that  he 
can  demand  as  his  just  due  only  that  which  will 
enable  him  to  realize  his  own  good  as  thus  inter- 
preted, it  becomes  plain  that  the  demands  of  dis- 
tributive justice  can  seldom  conflict  with  those  of 
economic  expediency.  Were  society  perfectly  organ- 
ized and  administered,  -a  conflict  would  never  arise. 
In  determining  whether  a  given  article  should  be 
public  or  private  property,  it  would  seem  logical  that 
the  decision  should  rest  upon  the  particular  consid- 
erations involved,  that  is  to  say,  upon  the  peculiar 
nature  of  the  article  in  question,  the  uses  to  which 
it  may  be  put,  etc.  Where  it  is  decided  that  pri- 
vate ownership  may  exist,  the  conditions  should  be 
made :  first,  that  private  owners  shall  not  be  per- 
mitted to  put  their  property  to  uses  clearly  detri- 
mental to  the  public  welfare,  or  to  the  legal  rights 
of  others  ;  and,  secondly,  that  the  law,  in  fixing  upon 
the  facts  which  are  to  be  taken  as  evidencing  the 
existence  of  a  property  right,  shall,  so  far  as   pos- 


PROPERTY  99 

sible,  select  facts  which  create  in  the  owners  a  moral 
right  to  protection.  Do  modern  systems  of  juris- 
prudence, so  far  as  they  relate  to  the  creation  and 
definition  of  private  property  rights,  conform  to 
these  two  conditions  ? 

As  regards  the  rights  of  usage  and  enjoyment, 
the  law  fully  recognizes  that  no  property  rights  are 
of  such  an  absolute  character  as  to  permit  the  in- 
dividual to  put  his  property  to  a  use  that  will 
directly  interfere  with  the  rights  of  others,  or  work 
detriment  to  the  social  welfare.  As  Holland  says : 
"  The  right  of  ownership  is  .  .  .  unlimited  only  in 
comparison  with  other  rights  over  objects.  In 
accordance  with  the  maxim  'sic  utere  tuo  ut  alienuTn 
non  Icedas,'  it  must  always  be  enjoyed  in  such  a  way 
as  not  to  interfere  with  the  rights  of  others,  and  is 
therefore  defined  in  the  French  code  as  '  le  droit  de 
jouir  et  disposer  des  choses  de  la  maniere  la  plus 
absolue,  pourvu  quon  n'en  fasse  pas  un  usage  pro- 
hihe  par  les  lois  ou  p)ar  les  reglements' "  ^ 

If,  then,  as  we  see,  the  law  recognizes  no  right  in 
the  owner  to  put  his  property  to  a  use  that  will 
interfere  with  the  rights  of  others,  or  be  detrimental 
to  the  interests  of  the  community  as  a  whole,  it  is 
clear  that,  as  an  abstract  conception,  the  legal  con- 
ception of  private  property  rights  cannot  be  objected 
to.  All  that  the  social  reformer  can  ask  as  to  this  is, 
therefore,  that  the  definition  and  manner  of  exercise 
of  property  rights  shall  be  so  stated  as  to  avoid  such 
evils  as  can  be  demonstrated  to  result  from  property 

^  Elements  of  Jurisprudence,  Chapter  XI. 


100  SOCIAL   JUSTICE 

rights  as  now  defined.  They  cannot  properly  claim 
that  property  rights  should  no  longer  be  maintained. 

We  turn  now  to  the  question  whether,  from  the 
standpoint  of  justice,  our  law  bases  its  recognition  of 
property  rights  upon  a  proper  selection  of  facts. 
This  inquiry  embraces  two  points :  first,  as  to  the 
conditions  that  are  accepted  by  the  law  as  creating 
the  right  of  property ;  and,  secondly,  as  to  the  pur- 
pose sought  by  the  law  in  extending  its  protection 
over  the  right,  when  recognized. 

We  find  it  frequently  stated  that  the  law  in  its 
creation  of  property  rights  recognizes  the  validity  of 
the  occupation  theory.  This  theory  we  have  already 
shown  to  be  invalid.  It  therefore  becomes  important 
to  determine  whether  our  law,  or  indeed  any  modern 
law,  stands  committed  to  it. 

In  a  general  way  the  law  does  recognize  a  property 
right  in  him  who  first  takes  possession  of  a  res  nullius. 
The  rights  which,  in  the  eyes  of  the  law,  belong  to 
the  first  possessor  are,  however,  no  other  in  nature 
than  those  which  attach  to  the  actual  holder  of  a 
piece  of  property  belonging  to  another.  Not  only 
in  the  Roman,  but  in  the  Common  Law,  he  who  has 
actual  possession  of  an  article  of  value  has  a  legal 
right  to  hold  and  enjoy  it  as  against  all  the  world, 
except  him  who  is  able,  by  a  judicial  proceeding,  to 
establish  a  better  title  to  it.  And  this  is  so  even 
though  no  claim  of  actual  ownership  be  set  up  by  the 
possessor.  As  against  the  true  owner,  he  has,  of 
course,  no  right ;  but  even  in  such  case  the  owner 
can  enter  into  possession  only  after  a  judicial  deter- 


PROPERTY  101 

mination  of  his  right.  The  difference  between  the 
rights  of  ownership  and  those  of  possession,  then, 
consist  only  in  this,  that  the  owner's  right  to  posses- 
sion is  good  as  against  every  one  ;  the  possessor's 
right  is  good  as  against  every  one  but  the  owner. 
Thus  it  is  that  if  an  owner  be  able  to  establish  his 
right  to  the  possession  of  a  given  piece  of  property, 
he  is  as  fully  secured  against  the  interference  of 
others  as  he  would  be  were  he  to  establish  his  right 
to  absolute  proprietorship.  "  One  who  is  out  of  pos- 
session," says  Pollock,  "  and  has  a  rightful  claim  to 
possess,  has  need  of  the  law's  assistance.  When  he 
has  recovered  possession,  he  has  not  any  need  to  ask 
the  law  to  do  any  more  for  him.  .  .  .  Hence  it  is  com- 
monly sufficient  for  an  owner  to  rely  on  his  rights  to 
possession ;  and,  as  it  is  commonly  easier  to  prove 
the  less  right  than  the  greater,  ...  it  is  often  pref- 
erable to  claim  possession  only.  Nay  more,  it  is 
possible  for  ownership  to  be  sufficiently  guarded  for 
all  practical  purposes  by  a  system  of  remedies  which 
omits,  or  has  come  to  omit,  any  such  solemn  and 
express  form  of  asserting  ownership  as  that  to  which 
the  Romans  emphatically  gave  the  name  Vindication. 
In  the  Common  Law  this  has  actually  happened.  For 
some  centuries  all  practical  remedies  for  the  recovery 
of  both  land  and  goods  have  been  possessory,  and 
property  has  meant  for  judicial  purposes,  the  right, 
or  the  best  right  to  possess."  ^ 

Returning   now  to   the   assertion   that   the  right 
recognized  in  the  first  occupant  or  possessor  of  a  res 

^  First  Book  of  Jurisprudence,  p.  170. 


102  SOCIAL   JUSTICE 

nullius  is  no  other  in  essence  than  that  recognized  in 
the  actual  holder  of  a  piece  of  property  owned  by 
some  one  else,  we  see  that,  while  it  is  only  a  right 
to  possession  that  is  recognized,  it,  in  fact,  becomes 
the  equivalent  of  ownership,  in  that,  ex  hypothesi, 
there  is  no  owner  in  existence  to  set  up  a  better 
title. 

But  why  is  possession  protected  by  the  law,  when 
the  possessor  is  not  also  the  owner  ?  Kant  and  Hegel 
would  sa}'-,  because  freedom  of  the  will  is  to  be  pro- 
tected at  all  hazards,  and  that  by  taking  possession 
of  a  thing  a  man  has  brought  it  within  the  sphere  of 
his  will.  This  will,  when  so  manifested,  they  hold, 
may  legitimately  be  interfered  with  by  no  other  par- 
ticular will,  but  only  by  the  universal  will  as  voiced 
and  executed  by  the  organs  of  the  State. ^  "  This 
right  following  from  the  fact  of  possession,"  says 
Kant,  "  does  not  consist  in  the  fact  that  because  the 
possessor  has  the  presumption  of  being  a  rightful 
man,  it  is  unnecessary  for  him  to  bring  forward  proof 
that  he  possesses  a  thing  rightfully.  ...  It  is  because 
it  accords  with  the  postulate  of  the  practical  reason 
that  every  one  is  invested  with  the  faculty  of  having 
as  his  own  any  external  object  upon  which  he  has 
exerted  his  will,  and,  consequently,  all  actual  pos- 
session is  a  state  whose  rightfulness  is  established 
upon  that  postulate  by  an  anterior  act  of  will."^ 

Others  have  said  that  possession  should  be  pro- 
tected because  there  is  a  presumption  that  the  pos- 

1  Cf.  Holmes,  The  Common  Law,  Lecture  VI. 
^Philosophy  of  Law,  translated  by  Hastie,  p.  79. 


PROPERTY  103 

sessor  is  also  the  owner. ^  But  this  is  in  accordance 
neither  with  legal  theory  nor  with  legal  history. 
The  real  and  sole  reason  is,  as  its  historical  connec- 
tion with  the  frith  shows,  that  the  public  peace  may 
be  preserved.^  Should  forcible  ouster  of  an  occupant 
or  possessor  be  permitted  either  to  a  stranger  or  to 
the  owner,  no  imagination  is  required  to  picture  the 
disorder  in  which  the  community  would  be  continu- 
ally involved.  The  law  must,  if  it  would  secure 
peace  at  all,  guarantee  to  the  occupiers  of  land,  and 
the  possessors  of  personal  property,  protection  against 
all  interference,  except  such  as  is  founded  upon  a 
judicial  process  in  which  it  has  been  determined  that 
another  has  a  higher  right  to  the  possession  of  the 
goods  in  question. 

In  all  this  the  sole  idea  is,  as  said,  the  preservation 
of  the  peace.  The  law  accepts  the  distribution  of 
wealth  as  it  is  brought  about  by  chance,  by  competi- 
tion, or  by  other  economic  or  social  forces,  and  seeks 
to  render  secure  to  each  one  the  possession  and 
enjoyment  of  the  portions,  if  any,  of  the  economic 
goods  which  he  has  obtained.  Thus  by  preventing 
disorder  and  by  punishing  spoliations,  the  law  seeks 
both  to  open  to  all  the  opportunity  for  gaining 
property,  and  to  furnish  that  stimulus  to  industry 
which  is  derived  from  a  knowledge  that  a  quiet 
possession  and  undisturbed  enjoyment  in  the  fruits  of 
one's  labor  are  guaranteed. 

When   it  is   once   decided  that  certain   rigrhts  of 


'O' 


^  E.g.  Ihering,  Ueher  den  Grund  des  Besitzesschutzes. 
^See  Jenks,  Law  and  Politics  in  the  Middle  Ages. 


104  SOCIAL   JUSTICE 

ownership  shall  exist,  either  because  they  are  just 
or  because  they  are  economically  desirable,  the  law- 
steps  in  and  declares  that  the  State,  by  its  power,  will 
guarantee  such  rights  against  violation.  In  so  doing 
the  law  adds  no  new  element  either  to  the  justifica- 
tion for  private  property  or  to  the  proof  of  its  eco- 
nomic expediency.  It  is  implicitly  recognized  that 
these  two  facts  have  already  been  established  when 
the  law  comes  upon  the  scene.  Least  of  all  does 
the  law  attempt  the  task  of  providing  that  each 
shall  gain  that  proportion  of  wealth  to  which,  upon 
abstract  principles  of  justice,  he  is  entitled. 

This  characteristic  of  the  law  has  been  especially 
commented  upon  by  Menger.  "  If  we  look  at  the 
economic  life  by  which  men  are  surrounded,"  he 
says,  "  we  find  its  main  purport  to  be  that  men  labor 
for  the  satisfaction  of  their  wants,  that  all  labor  aims 
at  a  return,  every  want  at  a  satisfaction.  Labor  and 
the  produce  of  labor,  wants  and  satisfactions,  are  the 
facts  in  the  two  sequences  in  which  the  economic  life 
of  mankind  fulfils  itself.  The  ideal  law  of  property 
from  the  economic  point  of  view  would  therefore  be 
attained  in  a  system  which  secured  to  every  laborer 
the  whole  produce  of  his  labor,  and  to  every  want  as 
complete  satisfaction  as  the  means  at  disposal  would 
allow.  Our  actual  law  of  property,  which  rests 
almost  entirely  on  traditional  political  conditions, 
does  not  even  attempt  the  attainment  of  these  eco- 
nomic ends.  .  .  .  By  assigning  the  existing  objects 
of  wealth,  and  especially  the  instruments  of  produc- 
tion, to  individuals  to  use  at  their  pleasure,  our  law 


PROPERTY  105 

of  property  invests  such  individuals  with  an  ascen- 
dancy by  virtue  of  which,  witliout  any  labor  of  their 
own,  they  draw  an  unearned  income  which  they  can 
apply  to  the  satisfaction  of  their  wants.  .  .  .  Neither 
does  our  actual  law  of  property  .  .  .  set  itself  the 
task  of  providing  for  every  want  a  satisfaction  pro- 
portionate to  the  available  means.  Our  codes  of 
private  law  do  not  contain  a  single  clause  which 
assigns  to  the  individual  even  such  goods  and  ser- 
vices as  are  indispensable  to  the  maintenance  of  his 
existence.  So  far  as  our  private  law  is  concerned, 
the  situation  is  somewhat  brutally  but  very  rightly 
expressed  by  Malthus  in  a  passage  which  by  its  very 
frankness  has  attained  a  certain  fame.  'A  man  who 
is  born  into  a  world  already  possessed,  if  he  cannot 
get  a  subsistence  from  his  parents  on  whom  he  has  a 
just  demand,  and  if  the  society  does  not  want  his 
labor,  has  no  claim  or  right  to  the  smallest  portion 
of  food,  and,  in  fact,  has  no  business  to  be  where  he 
is.  At  Nature's  mighty  feast  there  is  no  vacant 
cover  for  •  him.  She  tells  him  to  be  gone,  and  will 
quickly  execute  her  own  orders.'  What  Malthus 
says  here  of  food  applies  to  the  satisfaction  of  all 
other  wants."  ^ 

We  are,  then,  confronted  with  this  fact,  that  in 
our  present  property  law  no  attempt  is  made  to 
secure  a  just  distribution  of  wealth.     There  cannot, 

^  Rifjlit  to  the  Whole  Produce  of  Labor,  p.  3.  The  quotation  from 
Malthus  is  from  his  Essay  on  the  Principle  of  Population,  2d  edition 
(1803),  p.  5:n 


106  SOCIAL  JUSTICE 

however,  be  any  question  that,  if  it  were  possible 
to  obtain  distributive  justice  by  legal  means,  the 
effort  should  be  made.  The  socialists  claim  that 
this  can  be  done,  or  at  least  that  a  distribution  of 
wealth  more  just  than  that  which  competition  now 
secures  can  be  obtained.  Every  socialistic  scheme 
necessarily  has  two  sides  —  the  productive  and  the 
distributive.  Upon  the  productive  side,  the  claim 
is  that  the  nationalization  of  instruments  of  produc- 
tion will  increase  their  economic  efficiency.  Whether 
this  be  true,  or  if  true,  whether  the  administrative 
difficulties  involved  can  be  successfully  met,  we 
must  leave  to  the  economists  and  publicists  to  an- 
/  swer.  Upon  the  distributive  side,  the  socialist's  claim 
/  is  that,  if  all  products  become  the  property  of  the 

(    State,  it  will  be  possible  to  apportion  to  the  workers 

/    the    respective    shares   to  which  they   are   entitled. 

j    It    is  with    this  claim    that  we  are    here  especially 

J    concerned. 

In  order  to  make  their  claim  good,  it  is  necessary 
for  the  socialists  to  fix  upon  a  principle  of  desert 
that  is  both  more  just  than  that  which  is  now  real- 
ized in  the  economic  world,  and  one  that  is  possible 
of  at  least  an  approximate  enforcement  by  the  State. 
Our  next  task  is,  then,  to  determine  whether  the 
various  principles  of  distributive  justice  that  have 
been  put  forward  by  socialistic  schools  fulfil  these 
conditions. 


CHAPTER   V 

CANONS    OF    DISTRIBUTIVE    JUSTICE THE    LABOR 

THEORY 

In  this  and  following  chapters  we  propose  to 
examine  the  validity  of  the  various  canons  of  dis- 
tributive justice  which  have  been  put  forward  from 
time  to  time  by  socialistic  writers  as  of  absolute 
validity.  The  first  and  most  important  of  these  is 
that  which  declares  that  economic  goods  should  be 
distributed  wholly  to  those  who  have  produced 
them  by  their  labor. 

Suggestions  and  chance  statements  of  the  labor 
theory  can  be  found  in  various  writings  from  the 
earliest  times,  but  the  idea  is  first  found  fully  set 
forth  and  argued  by  Locke  in  his  Two  Treatises  of 
Government. 

The  part  played  by  the  economic  element  in 
Locke's  political  scheme  is  a  very  prominent  one. 
In  fact,  he  conceives  the  need  for  some  protection 
for  their  property  to  have  been  the  chief  motive 
which  has  urged  men  to  form  political  unions.  Indi- 
vidual liberty  is  itself  treated  by  him  as  a  form  of 
property,  namely,  that  right  of  ownership  which  a 
man  properly  has  over  himself.  Thus  Locke  is  able 
to  say,  "  The  great  and  chief  end  therefore  of  men 
imiting  into  commonwealths,  and  putting  themselves 

107 


108  SOCIAL   JUSTICE 

under  government,  is  the  preservation  of  their  prop- 
erty." ^ 

The  right  of  ownership  which  one  has  over  him- 
self Locke,  of  course,  derives  directly  from  natural 
law.  Property  in  objective  things,  however,  Locke 
founds  wholly  upon  labor.  "  God,"  he  says,  "  who 
hath  given  the  world  to  men  in  common,  hath  also 
given  them  reason  to  make  use  of  it  to  the  best 
advantage  of  life  and  convenience.  The  earth  and 
all  that  is  therein  is  given  to  men  for  the  support 
and  comfort  of  their  being.  And  though  all  the 
fruits  it  naturally  produces,  and  beasts  it  feeds,  be- 
long to  men  in  common,  as  they  are  produced  by 
the  spontaneous  hand  of  nature,  and  nobody  has 
originally  a  private  dominion  exclusive  of  the  rest 
of  mankind,  in  any  of  them,  as  they  are  thus  in 
their  natural  state,  yet  being  given  for  the  use  of 
men,  there  must  of  necessity  be  a  means  to  appropri- 
ate them  some  way  or  other  before  they  can  be  of 
any  use,  or  at  all  beneficial,  to  any  particular  men. 
The  fruit  or  venison  which  nourishes  the  wild  Indian 
who  knows  no  enclosure,  and  is  still  a  tenant  in 
common,  must  be  his,  and  so  his  —  i.e.  a  part  of 
him  —  that  another  can  no  longer  have  any  right  to 
it  before  it  can  do  him  any  good  for  the  support  of 
his  life." 

"  Though  the  earth  and  all  inferior  creatures  be 
common  to  all  men,  yet  every  man  has  a  '  property ' 
in  his  own  '  person.'  This  nobody  has  any  right  to 
but  himself.     The  '  labor '  of  his  body  and  the  '  work ' 

1  Op.  ciL,  Book  II,  Chapter  IX,  §  124. 


CANONS    OF    DISTRIBUTIVE   JUSTICE  109 

of  his  hands,  we  may  say,  are  properly  his.  What- 
soever, then,  he  removes  out  of  the  state  that  nature 
hath  provided  and  left  it  in,  he  hath  mixed  his  labor 
with  it,  and  joined  to  it  something  that  is  his  own, 
and  thereby  makes  it  his  property.  It  being  by 
him  removed  from  the  common  state  nature  placed 
it  in,  it  hath  by  his  labor  something  annexed  to 
it  that  excludes  the  common  right  of  other  men. 
For  this  '  labor '  being  the  unquestionable  property 
of  the  laborer,  no  man  but  he  can  have  a  right 
to  what  that  is  once  joined  to,  at  least  where 
there  is  enough,  and  as  good  left  in  common  for 
others."  ^ 

The  qualification  expressed  in  the  last  clause  is  to 
be  especially  noted,  inasmuch  as  it  would  seem  at 
once  to  deprive  his  theory  of  all  value,  except  as 
applied  to  a  people  in  a  primitive  state  of  civilization, 
and  inhabiting  a  comparatively  thinly  settled  terri- 
tory. This  limitation  of  the  right  of  acquisition  by 
labor  by  the  rights  of  others,  he  renders  still  more 
definite  in  the  following.  "It  will,  perhaps,  be 
objected  to  this,"  he  says,  "  that  if  gathering  the 
acorns  of  the  fruits  of  the  earth,  etc.,  makes  a  right 
to  them,  then  any  one  may  engross  as  much  as  he 
will.  To  which  I  answer.  Not  so.  The  same  law 
of  nature  that  does  by  this  means  give  us  property, 
does  also  bound  that  property  too.  ...  As  much 
as  any  one  can  make  use  of  to  any  advantage  of  life 
before  it  spoils,  so  much  he  may  by  his  labor  fix  a 
property  in.     Whatever  is  beyond  this  is  more  than 

1  Op.  cit,  Book  II,  Chapter  V,  §§  26,  27. 


110  SOCIAL   JUSTICE 

his  share,  and  belongs  to  others.  Nothing  was  made 
by  God  for  men  to  spoil  or  destroy."  ^ 

The  same  principles  are  also  applied  by  Locke  to 
the  acquisition  of  property  in  land.  He  says  :  "  But 
the  chief  matter  of  property  being  now,  not  the  fruits 
of  the  earth  and  the  beasts  that  subsist  on  it,  but  the 
earth  itself,  as  that  which  takes  in  and  carries  all 
the  rest ;  I  think  it  is  plain  that  property  in  that, 
too,  is  acquired  as  the  former.  As  much  land  as  a 
man  tills,  plants,  improves,  cultivates,  and  can  use 
the  product  of,  so  much  is  his  property.  .  .  .  Nor 
was  this  appropriation  of  any  parcel  of  land,  by 
improving  it,  any  prejudice  to  any  other  man,  since 
there  was  enough  and  as  good  left,  and  more  than 
the  yet  unprovided  could  use."^ 

It  would  seem  from  these  quotations  that  Locke  is 
himself  aware  that  his  theory  gives  only  an  explana- 
tion of  how  property  may  justly  arise  in  a  com- 
munity where  the  gifts  of  nature  are  so  abundant 
that  the  appropriation  of  some  of  them  by  par- 
ticular individuals  will  not  limit  the  corresponding 
rights  of  others.  How,  then,  does  he  justify  the 
acquisition  of  property  in  more  civilized  times,  when 
the  above  conditions  no  longer  prevail  ?  He  does 
this  by  saying  that,  by  agreeing  to  the  use  of  money, 
men  have  consented  to  the  introduction  of  an  element 
which  renders  it  both  possible  and  an  object  for  men 
to  obtain  for  themselves  accumulations  of  wealth  far 
greater  than  what  they  otherwise  would  be  entitled 

1  Op.  cit.,  Book  II,  Chapter  Y,  §  31. 

2  Idem,  Book  II,  Chapter  V,  §§  32,  33. 


CANONS   OP   DISTRIBUTIVE   JUSTICE  111 

to  acquire.  Before  the  introduction  of  money,  says 
Locke,  men  had  no  object  in  storing  up  consid- 
erable amounts  of  the  produce,  for  if  they  did  so, 
much  of  it  would  spoil  before  they  could  use  it.  But 
since  the  introduction  of  this  token  of  wealth,  they 
are  enabled  to  exchange  that  which  they  do  not 
want  for  their  own  use  for  money,  and  in  this  form 
preserve  and  continually  add  to  it.^ 

Locke  then  goes  on  to  show,  in  an  excellent  eco- 
nomic argument,  the  extent  to  which  human  labor 
enters  into  the  production  of  even  those  things  which, 
at  first  sight,  appear  to  be  most  largely  the  spontane- 
ous products  of  nature.  "  If  we  will  rightly  estimate 
things  as  they  come  to  our  use,"  he  says,  "  and  cast 
up  the  several  expenses  about  them,  —  what  in  them 
is  purely  owing  to  nature  and  what  to  labor,  —  we 
shall  find  that  in  most  of  them  ninety-nine-hun- 
dredths  are  wholly  to  be  put  on  the  account  of 
labor."  2 

i"This,"  he  says,  "is  certain,  that  in  the  beginning,  before  the 
desire  of  having  more  than  men  needed  had  altered  the  intrinsic 
value  of  things,  which  depends  only  on  their  usefulness  to  the  life  of 
man,  or  had  agreed  that  a  little  piece  of  yellow  metal,  which  would 
keep  without  wasting  or  decay,  should  be  worth  a  great  piece  of  flesh 
or  a  whole  heap  of  corn,  though  men  had  a  right  to  appropriate  by 
their  labor,  each  one  to  himself,  as  much  of  the  things  of  nature  as 
he  could  use,  yet  this  could  not  be  much,  nor  to  the  prejudice  of 
others,  where  the  same  plenty  was  still  left,  to  those  who  would  use 
the  same  industry."     Op.  cit.,  Book  IT,  Chapter  V,  §  37. 

2  "  It  is  labor,  then,  which  puts  the  greatest  part  of  value  upon  land, 
without  which  it  would  scai'cely  be  worth  anything ;  it  is  to  that  we  owe 
the  greatest  part  of  all  its  useful  products,  for  all  that  the  straw,  bran, 
bread,  of  that  acre  of  wheat  is  more  worth  than  the  products  of  an 
acre  of  as  good  land  which  lies  waste,  is  all  the  effect  of  labor.  For  it 
is  not  barely  the  ploughman's  pains,  the  reaper's  and  thresher's  toU,  and 


112  SOCIAL   JUSTICE 

The  conclusion  drawn  from  this  by  Locke  is, 
that  so  small  is  the  relative  part  played  by  land  in 
production,  there  would  never  have  come  the  time 
when  the  amount  of  unappropriated  ground  would 
be  so  limited  that  the  taking  into  possession  of  par- 
ticular pieces  of  it  by  individuals  would  appreciably 
diminish  the  opportunity  of  others  to  do  likewise, 
had  the  use  of  money  not  been  introduced.  "  This 
I  dare  affirm,"  he  says,  "  that  the  same  rule  of  pro- 
priety, viz.  that  every  man  should  have  as  much 
as  he  could  make  use  of,  would  still  hold  in  the 
world,  without  straitening  anybody,  since  there  is 
enough  land  in  the  world  to  suffice  double  the  num- 
ber of  inhabitants,  had  not  the  invention  of  money, 
and  the  tacit  agreement  of  men  to  put  a  value  on  it, 
introduced  (by  consent)  larger  possessions  and  a  right 
to  them."  ^ 

To  sum  up,  then,  Locke  founds  the  right  of  prop- 
erty, not,  as  did   Grotius  and  his  school,  upon  the 

the  baker's  sweat,  is  to  be  counted  in  the  bread  we  eat ;  the  labor 
of  those  who  broke  the  oxen,  who  digged  and  wrought  the  iron  and 
stones,  who  felled  and  framed  the  timber  employed  about  the  plough, 
mill,  oven,  or  any  other  utensils,  which  are  a  vast  number,  requisite 
to  this  corn,  from  its  sowing  to  its  being  made  bread,  must  all  be 
charged  on  the  account  of  labor,  and  received  as  an  effect  of  that; 
nature  and  the  earth  furnished  only  the  almost  worthless  materials 
as  in  themselves.  It  would  be  a  strange  catalogue  of  things  that 
industry  provided  and  made  use  of  about  every  loaf  of  bread  before 
it  came  to  our  use,  if  we  could  trace  them ;  iron,  wood,  leather,  bark, 
timber,  stone,  bricks,  coals,  lime,  cloth,  dyeing-drugs,  pitch,  tar,  masts, 
ropes,  and  all  the  material  used  in  the  ships  that  brought  any  of  the 
commodities  made  use  of  by  any  of  the  workmen,  to  any  part  of  the 
work,  all  which  it  would  be  impossible,  at  least  too  long,  to  reckon 
up."  Op.  cit.,  Book  II,  Chapter  V,  §  43. 
i/f/em,  Book  II,  Chapter  V,  §  36. 


CANONS    OF   DISTRIBUTIVE   JUSTICE  113 

mere  fact  of  first  occupancy,  but  upon  the  labor  implied 
in  the  taking  of  possession  or  in  the  production  of 
the  object  owned.  This  principle  he  holds  applicable 
to  modern  as  well  as  to  primitive  times,  and  avoids 
the  objection  that  since  comparatively  early  times 
the  stock  of  unappropriated  natural  wealth  has  not 
been  sufficient  to  enable  all  freely  to  obtain  an  oppor- 
tunity for  employing  their  labor,  by  alleging  that  by 
the  introduction  of  money  men  have  tacitly  agreed 
to  this  condition  of  affairs. 

That  the  use  of  money,  whatever  its  influence,  can 
be  conceived  to  rest  upon  a  tacit  agreement  of  such 
a  character  as  morally  to  bind  propertyless  men  to  an 
acquiescence  in  their  poverty,  is  of  course  so  extraor- 
dinary as  to  need  no  refutation.  The  real  reason 
why,  in  a  developed  society,  little  or  no  natural 
wealth  is  left  unappropriated  is  because,  with  the 
advance  of  civilization,  the  wants  of  mankind  have 
enormously  increased,  and,  for  the  satisfaction  of 
these  wants  it  is  necessary  to  utilize  all  the  advan- 
tages and  materials  spontaneously  offered  by  nature. 
In  this  economic  development,  a  standard  of  value 
and  medium  of  exchange,  such  as  metallic  money 
affords,  has  been  an  important  factor.  Money  has 
been  one  of  the  instruments  by  the  aid  of  which 
industrial  advance  has  been  facilitated,  but  it  has 
been  by  no  means  the  controlling  cause.  When  the 
matter  is  analyzed,  it  is  found  that  it  has  been  the 
general  advance  in  civilized  life,  and  not  money,  that 
has  rendered  impossible  a  continuance  of  that  primi- 
tive condition  in  which  the  unappropriated  bounties 


114  SOCIAL   JUSTICE 

of  nature  are  so  abundant  that  the  taking  of  posses- 
sion by  one  individual  of  a  portion  of  them  does  not 
appreciably  limit  the  enjoyment  of  a  similar  privilege 
by  all  others. 

The  doctrines  of  the  Physiocrats,  so  far  as  they 
relate  to  the  rightful  basis  of  property,  were  similar 
to  Locke's.  Labor  v^as  accepted  as  the  sole  efficient 
agent.  Underneath  both  their  economic  and  their 
political  theories  lay  the  general  doctrine  of  '^  natural 
rights."  Society  was  conceived  as  founded  upon  a 
contract,  government  was  looked  upon  as  a  neces- 
sary evil,  and  all  men  were  declared  possessed  of  a 
number  of  original,  inalienable  rights  which  could 
never  rightly  be  abridged.  Among  these  rights 
were  included  the  right  to  labor  and  the  right  to 
its  proceeds.  Arguing  from  the  right  to  labor, 
the  Physiocrats  demanded  that,  so  far  as  possible, 
industry  should  be  left  free  from  all  governmental 
restraints.  Arguing  from  the  right  to  the  proceeds  of 
labor,  they  asked  that  property  rights  should  be  held 
sacred,  and  that  the  producer  should  not  be  exploited 
by  excessive  taxes  and  forced  labor.  The  doctrines 
of  the  Physiocrats  in  respect  to  private  property  in 
land  we  shall  discuss  in  another  place. 

Adam  Smith  is  often  quoted,  and  with  ample 
justification,  as  holding  the  labor  doctrine.  In  one 
place  he  says,  "  The  property  which  every  man  has 
in  his  own  labor,  as  it  is  the  original  foundation  of 
all  other  property,  so  it  is  the  most  sacred  and  invio- 
late." ^     Again,  he  says,  "  As  soon  as  the  land  of  any 

1  Wealth  of  Nations,  Book  I,  Chapter  X. 


CANONS   OP   DISTRIBUTIVE   JUSTICE  115 

country  has  all  become  private  property,  the  land- 
lords, like  all  other  men,  love  to  reap  where  they 
have  never  sowed,  and  demand  a  rent  even  for  its 
natural  produce."  ^  And  elsewhere  :  "  The  produce 
of  labor  constitutes  the  natural  recompense  or  wages 
of  labor.  In  that  original  state  of  things  which  pre- 
cedes both  the  appropriation  of  land  and  the  accumu- 
lation of  stock,  the  whole  produce  of  labor  belongs  to 
the  laborer.  He  has  neither  landlord  nor  master  to 
share  with  him.  Had  this  state  continued,  the  wages 
of  laborers  would  have  augmented  with  all  those 
improvements  of  its  productive  powers,  to  which  the 
division  of  labor  gives  occasion."  ^  It  is  to  be  noted, 
however,  that  Smith  is  concerned  rather  with  the 
origin  of  wealth  than  with  the  foundation  of  prop- 
erty, that  is,  with  wealth  as  appropriated.  Thus 
Smith's  remarks,  as  quoted  above,  are  incidental 
merely,  and  not  made  in  the  course  of  an  inquiry 
into  the  justification  of  property.  He  nowhere 
attempts  to  maintain  that  an  actual  effort  should  be 
made  to  secure  by  law  a  distribution  of  wealth  upon 
the  basis  of  labor  performed,  and,  in  fact,  so  far 
as  we  are  aware,  he  nowhere  in  his  work  attempts  a 
careful  treatment  of  the  ethical  basis  of  private 
ownership.^ 

Though  Locke  and  the  Physiocrats  accepted  and 
developed  the  theory  that  through  labor  alone  is  it 

1  Wealth  of  Nations,  Book  I,  Chapter  VI. 

2  fdem,  Book  T,  Chapter  VII I. 

*  See  Bbhm-Bawerk,  Capital  and  Interest,  Book  VI,  ■where  it  is 
pointed  out  that  Smith  in  other  places  takes  positions  that  are  con- 
tradictory to  the  labor  theory. 


116  SOCIAL   JUSTICE 

possible  for  the  individual  to  obtain  a  just  title  to 
ownership  of  economic  goods,  they  made  no  attempt 
to  show  that  the  legally  protected  rights  in  private 
property,  even  as  to  land  or  other  instruments  of 
j)roduction,  which  then  existed  were  in  violation  of 
this  principle.  This  honor,  if  honor  it  be,  was  re- 
served for  later  English  writers,  and  it  was  from 
them  that  the  German  socialists  Marx  and  Rodbertus 
borrowed,  without  acknowledgment,  their  theories. 
This  plagiarism  is  abundantly  shown  by  Menger. 
As  Professor  Foxwell  says,  Menger  "  conclusively 
proves  that  all  the  fundamental  ideas  of  modern 
revolutionary  socialism,  and  especially  the  Marxian 
socialism,  can  be  definitely  traced  to  English  sources. 
It  was  a  handful  of  English  writers,  brought  up  in 
the  classic  country  of  capitalistic  production,  and 
reflecting  upon  the  terrible  wreckage  of  the  early 
pre-regulation  period,  who  laid  down  the  lines  of 
thought  upon  which  socialistic  criticism  has  ever 
since  proceeded.  ...  Of  this  English  school,  the 
chief  names  are  undoubtedly  those  of  Godwin,  Hall, 
Thompson,  Gray,  Hodgkin,  and  Bray."  ^ 

Godwin  fairly  deserves  to  rank  as  the  founder  of 
the  modern  philosophy  of  socialism,  and  moreover, 

*  Menger,  op.  cit.,  xxvii.  The  principal  works  of  these  writers, 
and  the  -dates  of  their  publication,  are  as  follows  :  William  Godwin, 
Political  Justice,  1793 ;  Charles  Hall,  The  EJfects  of  Civilization  on  the 
People  in  European  Statet^,  1805;  William  Thompson,  An  Inquiry  into 
the  Principles  of  the  Distribution  of  Wealth  most  conducive  to  Human 
Happiness,  1824:;  J.  Gray,  A  Lecture  on  Human  Happiness,  1825; 
Thomas  Hodgkin,  Labor  defended  against  the  Claims  of  Capital,  1825  ; 
J.  F.  Bray,  Labor's  Wrongs  and  Labor's  Remedy,  or  the  Age  of  Might 
and  the  Age  of  Right,  1839. 


CANO>JS    OF    DISTRIBUTIVE  JUSTICE  117 

paradoxical  as  it  may  seem,  of  anarchism  as  well. 
For,  though  he  first  stated  the  ethical  tenets  of  the 
socialist,  he  believed  it  possible  to  form  a  social 
order  in  which  the  realization  of  these  principles 
could  be  secured  without  the  use  of  coercion.  As 
regards  the  labor  theory  of  property,  however,  with 
which  we  are  now  specially  concerned,  his  system 
cannot  be  said  to  play  a  part ;  for  Godwin  advocated 
the  principle  that  the  distribution  of  goods  should 
be  to  those  most  in  need  of  them,  rather  than  to 
those  who  have  produced  them  by  their  labor. 

To  Charles  Hall  belongs  the  honor  of  being  the 
first  to  advocate  a  distribution  of  wealth  strictly 
according  to  the  labor  theory.  The  practical  meas- 
ures which  he  recommended  for  the  approximate 
attainment  of  this  end  were :  (1)  the  abolishment 
of  rights  of  primogeniture ;  (2)  the  imposition  of 
heavy  taxes  upon  all  luxuries ;  (3)  State  ownership 
of  land,  and  the  allotment  of  tracts  to  families  pro- 
portionate in  size  to  the  number  of  members  con- 
tained in  them. 

With  the  work  of  Thompson,  An  Inquiry  into  the 
Principles  of  the  Distribution  of  Wealth  most  con- 
ducive to  Human  Happiness,  published  in  1824,  we 
find  socialistic  doctrines  fairly  launched  in  their 
modern  form.  The  central  point  argued  is  that, 
by  the  payment  of  interest  and  rent  to  capitalists 
and  landowners,  the  right  of  the  laborer  to  the 
whole  produce  of  his  labor  is  violated. 

In  order  to  understand  this  last  doctrine,  and  to 
see  why  it  was  now  for  the  first  time  advanced,  it 


118  SOCIAL   JUSTICE 

will  be  necessary  to  stop  for  a  moment  to  consider 
the  changes  in  industrial  life  which  the  few  preced- 
ing years  had  brought  about,  and  also  to  explain  the 
influence  which  Ricardo's  restatement  of  the  labor 
theory,  together  with  his  "  Iron  Law "  of  wages, 
had  upon  the  development  of  socialistic  thought. 
Before  the  factory  system  arose,  when  manufacturing 
was  largely  carried  on  by  hand  at  home  or  in  small 
workshops,  the  part  played  by  capital  in  production 
was  comparatively  small.  Under  these  conditions 
the  ethical  demand  that  the  laborer  should  be  re- 
warded according  to  the  product  of  his  industry 
seemed  to  be,  in  the  main,  satisfactorily  realized. 
The  most  apparent  violations  of  this  right  were  in 
the  form  of  arbitrary  and  excessive  taxes,  or  vexa- 
tious restrictions  placed  by  the  law  upon  the  indi- 
vidual's right  to  engage  in  whatsoever  occupation 
he  chose,  or,  when  chosen,  to  carry  it  on  in  what- 
soever manner  he  should  see  fit.  So  long  as  the 
fiscal  demands  of  governments  were  not  excessive, 
nor  the  interference  with  the  freedom  of  labor  ex- 
treme, the  citizen  could  see  that  in  the  sacrifices 
made,  and  the  limitations  submitted  to,  he  received 
a  substantial  equivalent.  But  when  these  levies 
became  exorbitant,  or  the  restrictions  too  severe, 
this  was  no  longer  the  case,  and  the  laborer  seemed, 
in  such  instances,  to  be  deprived  of  a  portion  of  the 
goods  to  which  his  individual  industry  and  ability 
seemed  fairly  to  entitle  him.  Hence  we  find  the 
first  practical  movements  for  reform  taking  the 
direction  of  a  demand  for  the  abolition  of  oppressive 


CANONS    OF   DISTRIBUTIVE   JUSTICE  119 

taxes,  and  the  removal  of  the  restrictions  under 
which  the  laborers  were  obliged  to  carry  on  their 
trades.  This,  for  example,  was  the  character  of  the 
reforms  demanded  by  the  Physiocratic  school,  which, 
as  we  have  seen,  accepted  unreservedly  the  labor 
theory  of  property. 

Before  this  time,  and,  indeed,  dating  from  the 
ancient  days,  there  had  been  a  general  condem- 
nation of  the  exaction  of  interest,  or,  as  it  was 
called,  usury,  for  the  use  of  loaned  money.  This 
reprobation  of  interest  was  based,  however,  not 
upon  a  reasoned  theory  that  its  payment  was 
a  violation  of  the  right  of  the  laborer  to  the 
whole  produce  of  his  labor,  but  upon  a  wholly 
absm-d  idea  as  to  the  part  played  by  money  in  the 
economy  of  a  people.  After  the  spread  of  Chris- 
tianity, the  deprecation  of  interest  was  founded  upon 
various  declarations  of  the  Scriptures.^  To  the 
ordinary  mediaeval  mind  these  declarations  were,  in 
theory  if  not  in  practice,  sufficient  to  place  the  mat- 
ter beyond  all  doubt.  The  schoolmen,  however,  in 
their  attempts  to  demonstrate  the  rationality  of  all 
scripturally  revealed  commands  of  God,  essayed  the 
statement  of  the  reasons  why  the  demand  for  the 
payment  of  interest  is  unjust.  But  in  their  ex- 
planations they  got  no  farther  than  the  assertions 
that  money  is  by  nature  barren  (an  argument  first 
put  forward  by  Aristotle),  that  it  cannot  be  "  con- 
sumed,"   and   that   the    payment   of   interest  is,  in 

*  Leviticus  xxv.  36,  37  ;  Deuteronomy  xxiii.  19,  26;  Psalms  xv.  5; 
Ezekiel  xviii.  8,  17  ;  St.  Luke  vi.  35. 


120  SOCIAL   JCSTICE 

reality,  a  payment  for  time,  which  is  a  commodity 
free  to  alL  This  last  argmnent  was  the  one  espe- 
cially relied  upon  by  Aquinas.  Not  until  the  six- 
teenth century  was  the  rightfulness  of  interest-taking 
defended  upon  rational  grounds.  Calvin  was  the 
first  theologian,  and  Dumoulin  (Carolus  Molinaeus) 
the  first  jurist  to  take  this  position  and  ably  argue  it. 
Grotius  took  a  middle  position,  justifying  interest  by 
natural  law,  but  declaring  it  forbidden  by  the  re- 
vealed law.  Salmasius  in  a  number  of  works,  pub- 
lished between  1638  and  1640,  justified  the  taking 
of  interest,  as  did  Filmer  in  his  Mcestio  Quodlihetica 
(1653),  and  Locke  in  his  Some  Considerations  of  Con- 
sequences of  lowering  the  Interest  and  raising  the 
Value  of  Money  (1691).  Through  these  works,  and 
others  less  important,  the  doctrine  of  the  wrongful- 
ness of  interest  had  been  quite  effectually  undermined 
when,  in  1789,  Bentham  wrote  his  famous  Defence  of 
Usury.  In  France  of  this  time,  however,  the  doc- 
trine still  found  defenders  in  the  Physiocrat  Mirabeau 
(in  his  Philoso'phie  Rurale)  and  the  jurist  Pothier. 
The  arguments  of  Pothier  were  effectively  answered 
by  Turgot  in  his  Memoir e  sur  le  ]jret  d' argent, 
"  We  may  look  on  Turgot' s  controversy  with  Po- 
thier," says  Bohm-Bawerk,  "  as  the  closing  act  of  the 
three  hundred  years'  war  which  jurisprudence  and 
political  economy  had  waged  against  the  canon  doc- 
trine of  interest.  After  Turgot  the  doctrine  disap- 
peared from  the  sphere  of  political  economy.  Within 
the  sphere  of  theology  it  dragged  out  a  kind  of  life 
for  some  twenty   years   longer,  till   finally,  in    our 


CANONS    OF   DISTRIBUTIVE   JUSTICE  121 

century,  this  also  ended.  When  the  Roman  Peni- 
tentiary pronounced  the  taking  of  interest  to  be  al- 
lowable, even  without  any  peculiar  title,  the  Church 
itself  had  confirmed  the  defeat  of  its  erstwhile 
doctrine."  ^ 

With  the  introduction  of  steam  as  a  motive  force, 
conditions  of  manufacture  and  of  industrial  life,  out- 
side of  agricultural  pursuits,  fishing,  and  the  like,  were 
revolutionized.  Production  in  large  factories  took 
the  place  of  production  by  hand  in  the  home  or  small 
workshop.  Division  of  labor  was  carried  to  an  extent 
hitherto  unthought  of,  and  enormous  investments  of 
capital  were  required.  This  change  meant,  not  only 
that  it  became  henceforth  impossible  for  the  laborer 
to  distinguish  in  the  completed  product  the  actual 
results  of  his  own  handiwork,  but  that,  before  the 
product  could  be  distributed  in  the  form  of  wages, 
large  parts  of  it  had  to  be  subtracted  in  the  shape 
of  insurance,  interest  on  capital  invested,  salaries 
for  overseers  and  superintendents,  taxes,  operating 
expenses  (other  than  wages),  repairs  and  deteriora- 
tion of  plant,  and,  finally,  profits  to  the  entrepreneur. 
All  this  of  course  meant  the  apparent  return  to  the 
ordinary  laborer  of  but  a  small  portion  of  the  prod- 
uct created  by  his  industry,  and  the  result  was  that, 
to  those  who  did  not  fully  comprehend  the  conditions 

1  Capital  and  Interest,  p.  57.  For  a  fuller  history  of  theories  of 
usiiry  see  this  work  and  also  the  following :  Lecky,  History  of  Ration- 
alism in  Europe,  Vol.  II ;  White,  Warfare  of  Science  and  Theology,  Vol. 
II ;  Franck,  Philosophic  du  droit  penal,  p.  122  et  seq. ;  Yale  Review, 
February,  1894,  article  by  H.  C.  Lea  entitled  "The  Ecclesiastical 
Treatment  of  Usury,"  and  Ashley,  English  Economic  History,  Vol.  I. 


122  SOCIAL   JUSTICE 

and  demands  of  production  as  thus  carried  on,  the 
laborer  seemed  to  be  exploited  of  much  of  the  return  to 
which,  under  the  labor  theory,  he  was  justly  entitled. 

Most  modern  socialistic  doctrines  start  from  this 
ground.  Thus  we  may  quote  as  typical  the  argu- 
ment of  Rodbertus,  the  socialist  who,  more  than 
any  other,  devoted  himself  to  the  task  of  elaborat- 
ing the  theoretical  bases  of  the  system  he  held. 
"  As  there  can  be  no  income  unless  it  is  produced 
by  labor,"  says  Rodbertus,  "  rent  rests  on  two  indis- 
pensable conditions.  First,  there  can  be  no  rent  if 
labor  does  not  produce  more  than  the  amount  which 
is  just  necessary  to  the  laborers  to  secure  the  continu- 
ance of  their  labor,  for  it  is  impossible  that  without 
such  a  surplus  any  one,  without  himself  laboring,  can 
equally  receive  an  income.  Secondly,  there  could  be 
no  rent  if  arrangements  did  not  exist  which  deprive 
the  laborers  of  this  surplus,  either  wholly  or  in  part, 
and  g-ive  it  to  others  who  do  not  themselves  labor,  for 
in  the  nature  of  things  the  laborers  are  always  the 
first  to  come  into  possession  of  their  product.  That 
labor  yields  such  a  surplus,  rests  on  economic  grounds 
that  increase  the  productivity  of  labor.  That  this 
surplus  is  entirely,  or  in  part,  withdrawn  from  the 
laborers  and  given  to  others  rests  on  grounds  of 
positive  law;  and,  as  law  has  always  united  itself 
with  force,  it  only  effects  this  withdrawal  by  con- 
tinual compulsion. 

"  The  form  which  this  compulsion  usually  took  was 
slavery,  the  origin  of  which  is  contemporaneous  with 
that  of  agriculture  and  landed  property.     The  laborers 


CANONS   OF   DISTRIBUTIVE   JUSTICE  123 

who  produced  such  a  surplus  in  their  labor  product 
were  slaves,  and  the  master  to  whom  the  laborers 
belonged,  and  to  whom  consequently  the  prod- 
uct also  belonged,  gave  the  slaves  only  so  much 
as  was  necessary  for  the  continuance  of  their 
labor,  and  kept  the  remainder  or  surplus  to  himself. 
If  all  the  land,  and  at  the  same  time  all  the  capital 
of  a  country,  have  passed  into  private  property,  then 
landed  property  and  property  in  capital  exert  a  simi- 
lar compulsion  even  over  freedmen  or  free  laborers. 
For,  first,  the  result  will  be  the  same  as  in  slavery, 
that  the  product  will  not  belong  to  the  laborers,  but 
to  the  masters  of  land  and  capital ;  secondly,  the 
laborers  who  possess  nothing,  in  face  of  the  masters 
possessing  land  and  capital,  will  be  glad  to  receive  a 
part  only  of  the  product  of  their  own  labor  with  which 
to  support  themselves  in  life  ;  that  is  to  say,  again,  to 
enable  them  to  continue  their  labor.  Thus,  although 
the  contract  of  laborer  and  employer  has  taken  the 
place  of  slavery,  the  contract  is  only  formally  and  not 
actually  free,  and  hunger  makes  a  good  substitute  for 
the  whip.  What  was  formally  called  food  is  now 
called  wage."  ^ 

Thus,  affirming  that  under  modern  capitalistic 
conditions  an  exploitation  of  the  laboring  classes  is 
everywhere  and  continually  taking  place,  the  social- 
ists, as  a  rule,  demand  that  society  be  so  organized 
that  the  working-man  shall  be  guaranteed  the  entire 
product  of  his  industry. 

*  Zur  Beleuchtung  der  Sozialen  Frape,  p.  33.  Quoted  by  Bbhm- 
Bawerk  in  his  Capital  and  Interest,  English  translation,  p.  331. 


124  SOCIAL   JUSTICE 

From  an  historical  point  of  view,  the  starting-point 
of  the  exploitation  view  was  that  part  of  the  system 
of  Ricardo  wherein  is  found  a  restatement  of  Smith's 
labor-value  theory.  Neither  Smith  nor  Ricardo  had 
drawn  the  practical  conclusions  which  the  acceptance 
of  such  a  theory  necessarily  involved.  But,  with  the 
declaration  once  made,  and  accepted,  that  labor  is  the 
source  of  all  value,  "  it  was,"  as  Buhm-Bawerk  says, 
"  inevitable  that,  sooner  or  later,  people  would  begin 
to  ask  why  the  worker  should  not  receive  the  whole 
value  of  which  his  labor  was  the  cause.  And  when- 
ever that  question  was  put  it  was  impossible  that  any 
other  answer  could  be  given  on  this  reading  of  the 
theory  of  value,  than  that  one  class  of  society,  the 
dronelike  capitalists,  appropriates  to  itself  a  part  of 
the  value  of  the  product  which  the  other  class,  the 
workers,  alone  produces.  .  .  .  Thus  Adam  Smith 
and  Ricardo  may  be  regarded  as  the  involuntary 
godfathers  of  the  exploitation  theory.  They  are, 
indeed,  treated  as  such  by  its  followers.  They,  and 
almost  they  alone,  are  mentioned  by  even  the  most 
pronounced  socialists  with  that  respect  which  is  paid 
to  the  discoverers  of  the  '  true '  law  of  value,  and  the 
only  reproach  made  them  is  that  they  did  not  logi- 
cally follow  out  their  own  principles."  ^ 

Ricardo  was  also  responsible  in  another  way  for 
the  development  of  modern  socialism.  This  was  due 
to  the  so-called  "Iron  Law  of  Wages"  which  he 
formulated,  and  which  immediately  obtained  a  wide 
acceptance.     This  law,  stated  in  1817  in  his  Prin- 

^  Capital  and  Interest,  p.  316. 


CANONS    OF    DISTRIBUTIVE   JUSTICE  125 

ciples  of  Political  Economy  and  Taxation,  was  to 
the  effect  that,  under  the  joint  influences  of  the  eco- 
nomic law  of  diminishmg  returns  and  the  Malthu- 
sian  law  of  population,  wages  necessarily  tend  to 
remain  at  the  minimum  amount  that  will  enable 
laborers,  according  to  their  lowest  standards  of  com- 
fort, to  live  and  continue  their  species. 

The  immediate  deduction,  as  seen  in  the  writings 
of  Thompson  and  the  modern  socialists,  was  that,  if 
this  be  the  inevitable  tendency  in  a  society  organized 
on  the  individualistic  capitalistic  basis,  there  must  be 
something  radically  wrong  in  that  basis.  Starting, 
then,  with  the  assumption  that  labor  furnishes  the 
sole  right  to  property,  they  believed  that  this  wrong 
consisted  in  the  exploitation  of  the  laborers  by  pay- 
ments of  enormous  sums  to  capitalists  and  land- 
owners. 

The  right  to  the  whole  produce  of  labor  played  no 
part  in  the  French  social  philosophy  of  the  eighteenth 
century  ;  for,  though  such  writers  as  Mestier,  Morelly, 
and  Mably  vigorously  attacked  private  property,  they 
did  so  because  of  the  vices  —  pride  and  selfishness 
especially  —  to  which  they  believed  it  gave  rise. 
Nor  did  the  theory  have  a  place  in  the  theories  of 
Baboeuf,  St.  Simon,  or  Fourier.^  In  the  writings  of 
Proudhon,  however,  we  find  the  labor  theory  fully 
set  forth.    But  Proudhon  does  not  found  upon  labor  so 

1  See  Menger,  op.  cit.,  p.  62-73.  Some  of  the  followers  of  St. 
Simon  did,  however,  accept  the  labor  theory.  See  Bohm-Bawerk, 
Capital  and  Interest,  p.  318  et  seq.,  for  a  statement  of  the  views  of 
Sismondi,  who,  in  his  Nonveaux  Principes  d'Economie  Politiqiie,  accepted 
the  labor  theory  of  value,  but  drew  from  it  no  socialistic  doctrines. 


126  SOCIAL  JUSTICE 

much  a  right  of  absolute  ownership  as  a  right  to  an 
undisturbed  possession,  so  long  as  such  possession  does 
not  interfere  with  the  equal  rights  of  others.  Prop- 
erty, or  legal  ownership,  whether  by  the  individual 
or  society,  he  declares  to  be  theft.  Private  property, 
he  says,  renders  capitalism  possible,  and,  by  the  pay- 
ments which  the  capitalist  demands,  labor  is  robbed. 
Private  property  is  therefore  robbery.  *'  The  primary 
cause  of  commercial  and  industrial  stagnation  is  inter- 
est on  capital,  that  interest  which  the  ancients  with 
one  accord  branded  with  the  name  of  usury  wherever 
it  was  paid  for  the  use  of  money,  but  which  they  did 
not  dare  to  condemn  in  the  forms  of  house-rent, 
farm-rent,  or  profit,  as  if  the  nature  of  the  thing 
could  ever  warrant  a  charge  for  the  lending;  that 
is  robbery."  ^ 

But  the  evils  of  private  property,  he  declares,  are 
not  to  be  corrected  by  rendering  all  property  public. 
"  Communism  is  inequality,  but  not  as  property  is. 
Property  is  the  exploitation  of  the  weak  by  the 
strong.  Communism  is  the  exploitation  of  the  strong 
by  the  weak.  In  property,  inequality  of  conditions 
is  the  result  of  force,  under  whatever  name  it  is  dis- 
guised ;  physical  and  mental  force ;  force  of  events, 
chance,  fortunes ;  forces  of  accumulated  property, 
etc.  In  communism,  inequality  springs  from  plac- 
ing mediocrity  on  a  level  with  excellence.  This 
damaging  equation  is  repellent  to  the  conscience, 
and  causes  merit  to  complain ;  for,  although  it  may 
be  the  duty  of  the  strong  to  aid  the  weak,  they  pre- 

*  What  is  Property?  translated  by  Tucker,  p.  193. 


CANONS    OF   DISTRIBUTIVE   JUSTICE  127 

fer  to  do  it  out  of  generosity  —  they  never  will 
endure  a  comparison.  Give  them  equal  opportunities 
of  labor  and  equal  wages,  but  never  allow  their  jeal- 
ousy to  be  weakened  by  mutual  suspicion  of  unfaith- 
fulness in  the  performance  of  the  common  task. 
Communism  is  oppression  and  slavery.  Man  is  ever 
willing  to  obey  the  law  of  duty,  to  serve  his  country, 
and  oblige  his  friends ;  but  he  wishes  to  labor  when 
he  pleases,  where  he  pleases,  and  as  much  as  he 
pleases.  He  wishes  to  dispose  of  his  own  time,  to 
be  governed  only  by  necessity,  to  choose  his  own 
friendships,  his  recreation,  and  his  discipline,  to  act 
from  judgment,  not  by  command.  .  .  . 

"  Thus  communism  violates  the  sovereignty  of  the 
conscience  and  equality :  the  first,  by  restricting  spon- 
taneity of  mind  and  of  heart,  and  freedom  of  thought 
and  action  ;  the  second,  by  placing  labor  and  laziness, 
skill  and  stupidity,  and  even  vice  and  virtue  on  an 
equality  in  point  of  comfort.  For  the  rest,  if  prop- 
erty is  impossible  on  account  of  the  desire  to  accumu- 
late, communism  would  soon  become  so  through  the 
desire  to  shirk."  ^  "  If  property  is  a  natural,  absolute, 
imprescriptible,  and  unalienable  right,  why,"  he  asks, 
*'  in  all  ages,  has  there  been  so  much  speculation  as 
to  its  origin  ?  .  .  .  The  origin  of  a  natural  right. 
Good  God !  whoever  inquired  into  the  origin  of  the 
rights  of  liberty,  security,  or  equality  ?  They  exist 
by  the  same  right  that  we  exist ;  they  are  born  with 
us,  live  and  die  with  us.  With  property  it  is  very 
different  indeed.     By  law,  property  can  exist  without 

1  Op.  ciL,  p.  261. 


128  SOCIAL   JUSTICE 

a  proprietor,  like  a  quality  without  a  subject.  It 
exists  for  the  human  being  who  as  yet  is  not,  and  for 
the  octogenarian  who  is  no  more.  And  yet,  in  spite 
of  these  wonderful  prerogatives  which  savor  of  the 
eternal  and  the  infinite,  they  have  never  found  the 
origin  of  property."  "  Occupation,"  he  says,  "  will 
not  support  a  title  to  ownership ; "  for,  "  Not  only 
does  occupation  lead  to  equality,  it  prevents  property. 
For  since  every  man,  from  the  fact  of  his  existence, 
has  the  right  of  occupation,  and  in  order  to  live  must 
have  material  for  cultivation  on  which  he  must  labor ; 
and  since,  on  the  other  hand,  the  number  of  occupants 
varies  continually  with  the  births  and  deaths,  —  it 
follows  that  the  quantity  of  material  which  each 
laborer  may  claim  varies  with  the  number  of  occu- 
pants ;  consequently,  that  occupation  is  always  sub- 
ordinate to  population.  Finally,  that,  inasmuch  as 
possession,  in  right,  can  never  remain  fixed,  it  is 
impossible,  in  fact,  that  it  can  ever  become  property." 
"  Every  occupant  is,  then,  necessarily  a  possessor 
or  usufructuary,  a  function  which  excludes  proprietor- 
ship. Now  this  is  the  right  of  the  usufructuary ;  he 
is  responsible  for  the  thing  intrusted  to  him  ;  he 
must  use  it  in  conformity  with  general  utility,  with 
a  view  to  its  preservation  and  development ;  he  has 
no  power  to  transform  it,  to  diminish  it,  or  to  change 
its  nature;  he  cannot  so  divide  the  usufruct  that 
another  shall  perform  the  labor  while  he  receives  the 
product.  In  a  word,  the  usufructuary  is,  under  the 
supervision  of  society,  submitted  to  the  condition  of 
labor  and  the  law  of  equality.     Thus  is  annihilated 


CANONS    OF   DISTRIBUTIVE   JUSTICE  129 

the  Roman  definition  of  property  —  the  right  of  use 
and  abuse  —  an  immortality  born  of  violence,  the  most 
monstrous  pretension  that  the  civil  laws  ever  sanc- 
tioned. Man  receives  his  usufruct  from  the  hands 
of  society,  which  alone  is  a  permanent  possessor. 
The  individual  passes  away,  society  is  deathless."  ^ 
In  fact,  Proudhon  holds  that  the  theory  of  occupa- 
tion, if  rigidly  applied,  would  render  impossible  the 
possession  by  any  one  of  definite,  permanent  property 
rights.  He  says  :  ''  All  have  an  equal  right  of  occu- 
pancy. The  amount  occupied  being  measured,  not 
by  will,  but  by  the  movable  conditions  of  space  and 
number,  property  cannot  exist."  ^ 

Labor  will  not  support  a  valid  right  to  absolute 
ownership,  except  as  to  consumable  goods,  for  it  in- 
volves the  right  of  occupancy.  Labor  can  furnish, 
therefore,  only  a  qualified  right  to  possession.  This 
Proudhon  brings  out  when  speaking  of  land.  "  I 
maintain,"  he  says,  "  that  the  possessor  is  paid  for 
his  trouble  and  industry  in  his  doubled  crop,  but  that 
he  acquires  no  right  to  the  land.  '  Let  the  laborer 
have  the  fruits  of  his  labor.'  Very  good ;  but  I  do 
not  understand  that  property  in  products  carries  with 
it  property  in  raw  material.  ...  If  he  has  made 
improvements  in  the  soil,  he  has  the  possessor's  right 
of  preference.     Never,  under  any  circumstances,  can 

1  Op.  cit.,  p.  82.  Proudhon's  mistranslation  of  the  Roman  formula, 
jus  utendi  et  abutendi,  is  here  apparent.  As  we  have  already  seen,  the 
law  of  private  property  explicitly  denies  the  right  of  the  owner  to 
use  his  property  in  any  way  that  will  interfere  with  the  legal  rights  of 
others,  or  endanger  the  safety  or  morality  of  society. 

2  Op.  cit.,  p.  83. 


130  SOCIAL   JUSTICE 

he  be  allowed  to  claim  a  property  title  to  the  soil 
which  he  cultivates,  on  the  ground  of  his  skill  as  a 
cultivator." 

Among  the  German  socialists,  Rodbertus  stands 
conspicuous  not  only  as  having  developed  with  ful- 
ness and  lucidity  what  Bohm-Bawerk  terms  the  "ex- 
ploitation theory"  of  rent  and  interest,  but  as  having 
attempted  more  earnestly  than  his  fellow-thinkers 
the  constructive  socialistic  task  of  determining  the 
practical  means  by  which  the  laborer's  right  to  the 
whole  produce  of  his  industry  may  be  guaranteed  to 
him,  and  at  the  same  time  the  general  welfare  of 
society  secured.  Rodbertus  was  not  an  extreme 
socialist  in  that  he  did  not,  at  least  for  the  present, 
advocate  the  abolishment  of  private  property  either 
in  land  or  capital.  The  two  great  evils  of  our  pres- 
ent economic  life,  he  says,  are  pauperism,  and  com- 
mercial and  financial  crises,  and  these,  in  turn,  are 
largely  the  result  of  the  exploitation  of  the  laborer 
which  is  constantly  going  on.  Therefore,  he  be- 
lieves, if  the  laborer  can  be  secured  a  reward  more 
nearly  proportionate  to  his  work,  not  only  will  pov- 
erty be  practically  abolished,  but,  by  rendering  the 
purchasing  power  of  the  people  more  nearly  com- 
mensurate with  the  amount  of  the  economic  goods 
produced,  gluts  in  the  market  will  be  prevented,  and 
the  crises  which  they  cause  made  impossible.  The 
practical  plan  which  Rodbertus  puts  forward  as  ade- 
quate to  bring  all  this  about  is  that  normal  work- 
labor  and  time-labor  days  shall  be  declared  by  the 
State  for  each  form  of  industry,  and  for  each  estab- 


CANONS    OF   DISTRIBUTIVE   JUSTICE  131 

lishment  within  such  industries,  and  that  the  laborer 
shall  be  paid  for  his  work  in  paper  money  based 
upon  such  standard.  Concerning  the  practical  diffi- 
culties involved  in  the  determination  and  application 
of  such  a  standard  we  shall  speak  presently. 

Of  even  greater  general  mfluence  among  the 
socialists  than  Rodbertus,  has  been  Karl  Marx ;  and 
his  chief  work,  Das  Kajntal,  published  in  1867,  has 
often  been  spoken  of  as  the  Bible  of  the  social  dem- 
ocrats. "  And  it  deserves  the  name,"  says  Professor 
Ely.  "It  defends  their  doctrines  with  acuteness 
of  understanding  and  profundity  of  learning,  and 
certainly  ranks  among  the  ablest  politico-economic 
treatises  ever  written."  ^  Nevertheless,  inasmuch  as 
Marx's  theories  are  founded  almost  wholly  upon 
those  of  Rodbertus  and  Ricardo,  it  will  not  be 
necessary  to  review  them  at  length.  It  will  be  suffi- 
cient to  say  that  he  reaffirms  the  exploitation  of 
labor  under  present  conditions.  This,  he  says,  is 
due  to  the  fact  that  the  working-man,  being  deprived 
of  "  all  things  necessary  for  the  realizing  of  his 
^  labor  power,' "  is  obliged  to  offer  that  labor  power 
upon  the  market  for  sale,  and  to  take  for  it  that 
minimum  of  reward  which  competition  with  his 
fellow-workmen  brings  about. 

Criticism  of  the  Labor  Theory.  —  The  criticism  of 
the  labor  theory  may,  as  in  the  case  of  any  theory  of 
distributive  justice,  take  two  forms.  First,  we  may 
examine  its  validity  as  an  abstract  canon  of  desert ; 
secondly,  we  may  consider  whether,  even  if  accepted 

^  French  and  German  Socialism,  p.  137. 


132  SOCIAL   JUSTICE 

as  ethically  valid,  it  is  one  that  can  by  any  possi- 
bility be  approximately  realized  in  industrial  society. 
We  shall  first  inquire  as  to  its  abstract  justice. 

In  examining  the  labor  theory  as  an  absolute 
canon  of  distributive  desert,  it  is  to  be  remembered 
that  we  are  attempting  to  discover,  not  whether 
labor  is  one  of  a  number  of  elements  to  be  con- 
sidered, but  whether  it  is,  as  is  alleged,  the  sole 
principle  in  accordance  with  which  all  forms  of 
wealth  should  be  distributed.  When  approached 
from  this  standpoint,  the  theory  is  found  fatally 
defective  in  a  number  of  ways. 

In  the  first  place,  it  can  be  shown  that  its  funda- 
mental premise,  that  labor  is  the  source  of  all  wealth, 
is  false.  This  of  itself,  of  course,  deprives  of  all 
validity  the  canon  that  labor  should  be  the  sole 
standard  of  distributive  desert. 

It  is  of  course  true  that  the  socialists  are  not  so 
foolish  as  to  deny  the  assistance  which  the  laborer 
derives  from  capital  and  land.  Their  contention 
is,  however,  that  private  individuals  should  not  be 
permitted  by  the  law  to  exact  a  charge  for  this 
assistance.  The  question  is  thus  reduced  to  one 
regarding    the    rightfulness   of    interest   and    rent.^ 

^  "  Socialists  do  not  recognize  three  productive  factors,  land,  capital, 
and  labor ;  they  acknowledge  only  a  single  productive  power,  Labor. 
Only  human  labor,  they  say,  is  creative,  it  alone  can  really  produce. 
Of  course,  to  be  effective,  it  requires  land  and  capital,  but  these  hold 
a  subordinate  position  to  labor,  and  act  merely  as  auxiliary  means  of 
production.  But  in  the  existing  order  of  things,  landowners  and 
capitalists  —  as  having  exclusive  possession  of  the  material  auxiliary 
means  of  production  —  are  placed  in  a  position  to  force  the  laborer 
to  give  up  to  them  a  great  part  of  the  product  of  labor,  as  it  is  only 


CANONS    OF    DISTKIBUTIVE   JUSTICE  133 

Now  this  exact  question  has  recently  been  subjected 
to  a  most  careful  examination  by  a  number  of 
writers  who  constitute  what  is  called  the  "  Austrian 
School"  of  economists.^  So  thoroughly  have  they 
done  this  work,  that  nothing  more  need  be  said  upon 
the  subject.  As  Smart  says  of  Bohm-Bawerk's  criti- 
cism, "  The  crushing  confutation  of  the  labor-value 
theory  is  work  that  will  not  require  to  be  done 
twice ; "  and  as  Bohm-Bawerk  himself,  and  with  just 
right,  says,  "  In  future  any  one  who  thinks  he  can 
maintain  this  law  will  first  of  all  be  obliged  to 
supply  what  his  predecessors  have  omitted  —  a  proof 
that  can  be  taken  seriously.  Not  quotations  from 
authorities,  not  protesting  and  dogmatizing  phrases, 
but  a  proof  that  earnestly  and  conscientiously  goes 
into  the  essence  of  the  matter."  ^  Considering,  then, 
the  finality  of  this  work,  we  would  almost  need  an 
excuse  for  giving  it  in  other  than  the  exact  lan- 
guage of  its  authors.  Limitation  of  space,  however, 
makes  this  impossible.  Fortunately,  however,  in 
the   introductions  which   he   has   furnished   to    the 

on  this  condition  that  they  will  lend  their  property  and  allow  labor  to 
use  it.  .  .  .  When  the  owners  refuse  to  grant  to  labor  the  use  of  these 
auxiliaries,  they  place  obstacles  in  the  way  of  labor,  as  Rodbertus 
says ;  when  they  do  grant  this  use,  they  do  nothing  more  than  merely 
remove  the  obstruction  they  have  themselves  created;  they  simply 
withdraw  their  own  fiat.  It  is  always  the  laborer  who  must  produce. 
Land  and  capital  are  only  conditions,  not  causes  of  production.  All 
return  is  exclusively  labor  return."  —  Wieser,  Natural  Value,  English 
translation  by  Malloch,  pp.  78-79. 

1  See  especially  Bbhm-Bawerk,  Capital  and  Interest,  translated  by 
Smart,  and  Positive  Theory  of  Capital,  translated  by  Smart,  and  Wieser, 
Natural  Value,  translated  by  Malloch. 

2  Op.  cit.,  p.  389. 


134  SOCIAL   JUSTICE 

English  translations  of  the  works  of  Bohm-Bawerk 
and  Wieser,  Professor  Smart  has  set  forth  within 
a  comparatively  few  pages  and  with  absolute 
clearness  the  nature  of  the  inquiries  attempted, 
the  general  character  of  the  arguments  used, 
and  the  essential  conclusions  reached.  In  the 
main,  therefore,  we  shall  follow  Professor  Smart's 
language. 

The  problem  is  thus  stated :  ^'  The  essential  fea- 
tures here,  as  regards  our  problem,  are  that  over  a 
year's  time  the  products  manufactured  are  sold  at  a 
price  which  not  only  covers  the  value  of  raw  mate- 
rials, reimburses  the  various  wages  of  manual  and 
intellectual  labor,  and  replaces  the  fixed  capital 
as  worn  out,  but  leaves  over  that  amount  of  value 
which  is  divided  out  among  the  capitalist  share- 
holders as  interest.  In  normal  capitalistic  pro- 
duction, that  is  to  say,  not  only  is  the  value  of 
capital  consumed  in  the  production  process  replaced, 
but  a  surplus  of  value  appears.  It  has  not  always 
been  perceived  by  economists  that  this  surplus 
value  is  the  essential  phenomenon  of  what  we 
call  interest,  —  that  interest  on  capital  consists  of 
this  very  surplus  value  and  nothing  else,  —  but, 
wherever  it  is  perceived,  the  question  almost  sug- 
gests itself.  What  does  this  surplus  value  repre- 
sent ?  Is  it  merely  a  surplus,  or  is  it  of  the  nature 
of  a  wage  ?  In  other  words,  Is  it  something  obtained 
either  by  chance  or  force,  and  corresponding  to  no 
service  rendered  by  anybody  or  anything ;  or  is  it 
something  connected  with  capital  or   the   capitalist 


CANONS   OF   DISTRIBUTIVE   JUSTICE  135 

"that,  economically  speaking,  deserves  a  return  or  a 
wage  : 

"If  we  appeal  to  the  common  consciousness  to  say 
what  it  is  that  capital  does,  or  forbears  to  do,  that  it 
should  receive  interest,  we  shall  probably  get  two 
answers.  One  will  be  that  the  owner  of  capital . 
contributes  a  valuable  element  to  production ;  the 
other  that  he  abstains  from  using  his  wealth  in  his 
own  immediate  consumption."  The  acceptance  of 
the  first  of  these  views  leads  to  a  group  of  theories 
called  by  Bohm-Bawerk  "  Productivity  Theories." 
The  acceptance  of  the  second  leads  to  what  he  calls 
"  Abstinence  Theories."  But  neither  of  these  views 
is  correct.  The  productivity  theory  is  invalid  for 
the  following  reasons :  The  usual  treatment  of  the 
interest  problem  by  those  who  profess  the  produc- 
tivity theory  "  is  to  coordinate  capital  wdth  the  other 
factors  of  production,  land  and  labor,  and  assume 
that  interest  is  the  payment  for  the  services  of 
capital,  as  wage  is  for  the  services  of  labor.  ...  If, 
however,  we  demand  an  answer  to  what  we  have 
formulated  as  the  true  problem  of  interest,  we  shall 
make  the  discovery  that  the  productivity  theory  has 
not  even  put  the  problem  before  itself.  The  amount 
of  truth  in  the  theory  is  that  capital  is  a  most  power- 
ful factor  in  the  production  of  wealth,  and  that 
capital,  accordingly,  is  highly  valued.  But  to  say 
that  capital  is  ^  productive '  does  not  explain  interest, 
for  capital  would  still  be  productive  although  it  pro- 
duced no  interest;  e.g.  if  it  increased  the  supply  of 

^  Introduction  to  Bohm-Bawerk's  Capital  and  Interest,  p.  viii. 


136  SOCIAL  JUSTICE 

commodities  the  value  of  which  fell  in  inverse  ratio, 
or  if  its  products  were,  both  as  regards  quantity  and 
value,  greater  than  the  products  of  unassisted  labor. 
The  theory,  that  is  to  say,  explains  why  the  manu- 
facturer has  to  pay  a  high  price  for  raw  materials, 
for  the  factory  buildings,  and  for  machinery  —  the 
concrete  forms  of  capital  generally.  But  it  does  not 
explain  why  he  is  able  to  sell  the  manufactured 
commodity,  which  is  simply  these  materials  and 
machines  transformed  by  labor  into  products,  at  a 
higher  price  than  the  capital  expended.  It  may 
explain  why  a  machine  doing  the  work  of  two 
laborers  is  valued  at  £100,  but  it  does  not  explain 
why  capital  of  the  value  of  .£100  now,  should  rise  to 
the  value  of  £105  twelve  months  hence;  in  other 
words,  why  capital  employed  in  production  regularly 
increases  to  a  value  greater  than  itself.  .  .  .  The 
important  circumstance  forgotten  in  this  theory  is 
that  the  productiveness  of  concrete  capital  is  already 
discounted  in  its  price.  ...  To  ascribe  interest  to 
the  productive  power  of  capital  is  to  make  a  double 
charge  for  natural  forces  —  in  the  price  and  in  the 
interest.  ...  It  cannot  be  too  often  reiterated  that 
the  theory  which  explains  interest  must  explain  sur- 
plus value  —  not  a  surplus  of  products  which  may 
obtain  value  and  may  not ;  not  a  surplus  of  value 
over  the  amount  of  value  produced  by  labor  unassisted 
by  capital ;  but  a  surplus  of  value  in  the  product  of 
capital  over  the  value  of  the  capital  consumed  in 
producing  it." 

"Value  cannot  come  from   production.      Neither 


CANONS   OF   DISTRIBUTIVE  JUSTICE  137 

capital  nor  labor  can  produce  it.  What  labor  does  is 
to  produce  a  quantity  of  commodities,  and  what  capi- 
tal, cooperating  with  labor,  usually  does  is  to  increase 
that  quantity.  These  commodities,  under  certain 
known  conditions,  will  usually  possess  value,  though 
this  value  is  little  proportioned  to  their  amount; 
indeed,  it  is  often  in  inverse  ratio.  But  the  value 
does  not  arise  in  the  production,  nor  is  it»  propor- 
tional to  the  eSorts  and  sacrifices  of  that  production. 
The  causal  relation  runs  exactly  the  opposite  way. 
To  put  it  in  terms  of  Menger's  law,  the  means  of 
production  do  not  account  for  nor  measure  the  value 
of  products ;  on  the  contrary,  the  value  of  products 
determines  and  measures  the  value  of  means  of  pro- 
duction. Value  only  arises  in  the  relation  between 
human  wants  and  human  satisfactions,  and  if  men 
do  not  '  value '  commodities  when  made,  all  the  labor 
and  capital  expended  in  the  making  cannot  confer  on 
them  the  value  of  the  smallest  coin.  But  if  neither 
capital  nor  labor  can  create  value,  how  can  it  be 
maintained  that  capital  employed  in  production  not 
only  reproduces  its  own  value,  but  produces  a  value 
greater  than  itself?  "^ 

The  abstinence  theory  is  also  invalid  for  the  fol- 
lowing reasons :  "  The  strength  of  the  abstinence 
theory  is  that  the  facts  it  rests  on  really  give  the 
explanation  how  capital  comes  to  be  in  primitive  con- 
ditions and  in  new  conditions.  The  first  efforts  to 
accumulate  capital  must  be  attended  by  sacrifice, 
a  temporary  sacrifice,  of  course,  to  secure  a  perma- 

^  Capital  and  Interest,  Introduction,  p.  xi. 


138  SOCIAL  JUSTICE 

nent  gain,  but,  in  the  first  instance  at  least,  a  mate- 
rial sacrifice.  .  .  .  But  to  account  for  the  origin  of 
capital  by  abstinence  from  consumptive  use  is  one 
thing;  to  account  for  interest  is  another.  In  all  pro- 
duction labor  sacrifices  life  and  capital  sacrifices 
immediate  enjoyment.  It  seems  natural  to  say  that 
one  part  of  the  product  pays  wage  and  another  pays 
interest  as  compensation  for  the  respective  sacrifices. 
But  labor  is  not  paid  because  it  makes  a  sacrifice,  but 
because  it  makes  products  which  obtain  value  from 
human  wants;  and  capital  does  not  deserve  to  be 
paid  because  it  makes  sacrifices,  —  which  is  a  matter 
of  no  concern  to  any  one  but  the  capitalist,  —  but 
because  of  some  useful  effect  produced  by  its  cooper- 
ation. Thus  we  come  back  to  the  old  question.  What 
sacrifice  does  capital  render  that  the  abstinence  which 
preserves  and  accumulates  it  should  get  a  perpetual 
payment?  And  if,  as  we  saw,  productivity  cannot 
account  for  interest,  no  more  can  abstinence."  ^ 

The  true  reason  why  interest  is  justifiable,  and  one 
that  effectually  answers  the  exploitation  theory,  is  the 
following :  "  When  we  lend  capital,  whether  it  be  to 
the  nation  or  to  individuals,  the  interest  we  get  is  the 
difference  in  popular  estimation  and  valuation  be- 
tween a  present  and  a  future  good.  If  we  lend  to 
direct  production,  the  reason  we  get  interest  is  not 
that  our  capital  is  reproducing  itself  and  more.  The 
explanation  of  this  reproduction  is  to  be  found  in  the 
work  of  those  who  employ  the  capital,  both  manual 
and   intellectual  workers.     We  get   interest  simply 

*  Op.  cit.,  p.  XV. 


CANONS   OF   DISTRIBUTIVE   JUSTICE  139 

because  we  prefer  a  remote  to  a  present  result.  It 
is  not  that  by  waiting  we  get  more  than  we  give ; 
what  we  get  at  the  year's  end  is  no  more  than  the 
equivalent  value  of  what  we  lent  a  year  before. 
Capital  plus  interest  on  the  31st  of  December  is  the 
full  equivalent  of  capital  alone  on  1st  of  January  pre- 
ceding. Interest,  then,  is  in  some  sense  what  Aqui- 
nas called  it  —  a  price  asked  for  time.  Not  that  any 
one  can  get  the  monopoly  of  time,  and  not  that  time 
itself  has  any  magic  power  of  producing  value;  but 
the  preference  by  the  capitalist  of  a  future  good  to  a 
present  one  enables  the  worker  to  realize  his  labor  in 
undertakings  that  save  labor  and  increase  wealth. 
But  as  capital  takes  no  active  role  in  production,  but 
is  simply  material  on  which  and  tools  by  which  labor 
works,  the  reward  for  working  falls  to  the  worker, 
manual  and  intellectual;  the  reward  for  waiting  to 
the  capitalist  only.  Economically  speaking,  as  wage 
is  a  fair  bargain  with  labor,  because,  labor  can  pro- 
duce its  own  wage,  so  is  interest  a  fair  bargain  with 
the  capitalist,  because  in  waiting  the  capitalist  merely 
puts  into  figures  the  universal  estimate  made  by  men 
between  past  and  future  goods,  and  the  capitalist  is 
as  blameless  of  robbery  as  the  laborer."  ^ 

^  Op.  cit.,  p.  xix.  As  a  criticism  to  the  above,  however,  we  instinc- 
tively ask  why  it  is  that  we  prefer  a  present  to  a  future  possession  of 
a  given  amount  of  capital.  To  this  the  natural  answer  is,  that  it  is 
because  we  are  able  to  put  that  capital  to  some  use.  And  thus  one  is 
inclined  to  say  that,  after  all,  it  is  the  "  use  "  of  capital  which  explains 
its  interest-producing  quality.  The  answer  to  this  has  been  satisfac- 
torily given  by  Menger,  but  in  an  argument  too  long  to  be  reproduced 
here.  It  is  sufficient  to  say,  however,  that  he  shows  that  the  "value  " 
of    goods    comes    from    their    power,    when    consumed,   to    satisfy 


140  SOCIAL   JUSTICE 

To  the  foregoing  argument  it  may  be  added,  that 
not  only  does  capital  play  a  part  in  the  productive 
process  that  justly  entitles  it  to  a  return,  but  that 
society  "itself  enters  as  a  factor  equally  efficient,  if  not 
as  direct ;  and  therefore  that,  even  upon  the  labor 
theory,  before  laborers  can  claim  their  return,  it  is 
just  that  there  should  be  subtracted  from  the  whole 
product  not  only  the  legitimate  return  to  capital,  but 
that  part  which  has  been  created,  or  at  least  rendered 
possible  of  creation,  by  the  existence  of  a  social 
order.  Without  social  organization,  without  the 
cooperation  which  it  makes  possible,  without  the 
protection  which  the  law  affords,  without  all  those 
elements  of  civilized  life  which  social  life  and  polit- 
ical order  render  possible,  not  only  would  labor  be 
far  less  productive  than  it  now  is,  but  the  laborer 
himself  would  be  without  a  stimulus  for  his  industry 
beyond  that  afforded  by  the  bare  need  for  food  and 
clothing.  Professor  Ritchie,  in  commenting  upon 
Locke's  description  of  the  various  forms  of  labor  that 
directly  or  indirectly  are  involved  in  the  making  of 
such  a  simple  thing  as  a  loaf  of  bread,  calls  attention 
to  the  fact  that  Locke  has  failed  to  mention  this 
important  social  factor.  ^^  The  soldiers  that  guard 
the  country  from  invasion  so  that  harvests  can 
be  reaped,"  says  Ritchie ;  "  the  magistrates  who  are 
a  terror  to  evil-doers ;  all  those  who  increase  the 
knowledge,  quicken  the  intellect,  and  raise  the  char- 
human  wants,  and  that  when  capital  is  employed  in  production  it  is 
in  fact  consumed  rather  than  simply  used.  Capital  has  therefore  a 
greater  present  than  future  value  because  it  has  a  greater  consumptive 
value. 


CANONS   OF   DISTRIBUTIVE  JUSTICE  141 

acter  of  a  community,  and  so  make  complicated 
industrial  relations  more  possible  between  human 
beings,  —  all  these  might  claim  a  part  in  the  mak- 
ing even  of  a  loaf  of  bread.  That  is  to  say,  the  loaf 
is  not  merely  the  product  of  nature  plus  labor,  but 
of  nature  plus  social  labor,  and  this  social  labor  is 
not  merely  the  aggregate  of  the  labor  of  various 
individuals,  but  it  is  the  labor  of  individuals  work- 
ing in  an  organized  society.  It  is  not,  therefore,  the 
individuals,  as  individuals,  that  have  mixed  their 
labor  with  nature,  but  the  individuals  as  members 
of  a  society.  Therefore,  if  we  translate  the  facts 
into  Locke's  phraseology,  we  must  say  that  by  the 
law  of  nature,  i.e.  according  to  reason,  apart  from 
any  explicit  or  tacit  consent  of  the  individuals  com- 
posing the  community,  the  loaf  belongs  to  the  society 
as  a  whole,  and  not  to  this  or  that  individual.  .  .  . 
We  cannot,  therefore,  treat  '  property '  as  a  category 
independent  of  society,  except  by  a  false  abstrac- 
tion."^ It  is,  however,  to  be  observed  that,  in  a 
socialistic  state,  this  last-mentioned  consideration 
would  not  be  of  great  importance,  as,  in  theory  at 
least,  under  such  a  regime  all  would  have  the  oppor- 
tunity of  sharing  equally  in  the  productivity  of  the 
social  factor. 

Finally,  it  is  to  be  observed,  criticism  may  be 
made  of  that  original  premise  from  which  those  who 
have  held  the  labor  theory  have  derived  the  natural 
right  of  the  individual  to  the  produce  of  his  own 
labor;    namely,  his   right   to    himself.      How,   asks 

1  Darwin  and  Hegel,  chapter  on  "  Locke's  Theory  of  Property." 


142  SOCIAL  JUSTICE 

Huxley,  does  a  man  come  to  a  right  to  himself  ? 
He  did  not  create  himself  by  his  own  efforts. 
Rather,  he  owes  his  existence  and  what  he  is  to 
his  mother  who  bore  him,  and  bore  with  him,  sup- 
ported him  during  infancy,  and  educated  him. 
"  The  man's  physical  and  mental  tendencies  and 
capacities,  dependent  to  a  very  large  extent  on 
heredity,  are  certainly  the  gratuitous  offering  of 
nature ;  if  they  belong  to  anybody,  therefore,  they 
must  belong  to  the  whole  of  mankind,  who  must 
be,  so  to  speak,  a  kind  of  collective  slaveowner, 
all  of  each.  So  much  of  the  man  as  depends  on 
the  care  taken  of  him  in  infancy  and  childhood  is 
the  property  of  his  mother,  or  of  those  who  took  her 
place.  Another  smaller  portion  belongs  to  the  peo- 
ple who  educated  him.     What  remains  is  his  own."  ^ 

The  argument  that  has  gone  before  has  been 
absolutely  destructive  of  the  premise  that,  by  the 
payment  of  interest  for  the  use  of  capital,  the 
laborer  is,  pro  tanto,  exploited.  With  the  destruc- 
tion of  this  premise  necessarily  falls  to  the  ground 
the  conclusion  that  the  entire  produce  of  industry 
should  be  divided  among  those  actively  engaged  in 
its  production. 

There  is,  however,  still  a  possible  ground  for  main- 
taining that,  even  though  the  laborers  be  not  entitled 
to  the  whole  produce,  they  are  entitled  to  a  share 
strictly  proportionate  to  the  part  played  by  labor 
in  production.  Can  this  contention  be  maintained? 
We  do  not  think  it  can.     For  the  most  part  there 

^  "  Natural  and  Political  Rights,"  Collected  Essays,  Vol.  I. 


CANONS    OF    DISTRIBUTIVE   JUSTICE  143 

can  be  no  doubt  that  economic  expediency,  as  well 
as  justice,  demands  that  reward  should  be  propor- 
tioned to  work  done,  but  this  cannot  be  erected 
into  an  absolute  principle ;  and  for  the  following 
reasons :  — 

In  the  first  place,  the  acceptance  of  such  a  theory 
necessarily  means  that,  in  such  an  allotment  of 
shares,  individual  capacities  for  enjoyment,  as  well 
as  the  intensity  of  individual  needs,  shall  be  wholly 
disregarded.  If,  then,  either  of  these  factors  be  at 
all  relevant  in  the  apportionment  of  goods,  the  labor 
theory  is  fundamentally  defective.  That  they  are 
relevant  we  shall  see  in  the  next  chapter. 

In  the  second  place,  it  is  obvious  that  what  an 
individual  is  able  to  produce  by  his  labor  largely 
depends  upon  naturally  given  or  inherited  capac- 
ities of  mind  and  body.  But  the  labor  theory,  if 
rigorously  applied,  makes  no  distinction  between 
that  efficiency  which  comes  from  naturally  given 
powers,  and  that  which  is  due  to  industry  and  faith- 
fulness, or  to  capacities  that  have  been  slowly 
acquired  by  long  and  patient  effort  and  serious  self- 
denial  in  the  past.  In  a  former  chapter,  where  we 
discussed  the  true  relation  between  charity  and  jus- 
tice, we  came  to  the  conclusion  that  there  is  upon 
us  individually,  and  upon  society  as  a  whole,  the 
moral  obligation  to  assist  to  a  higher  level  of 
development  and  happiness  those  who,  through  no 
fault  of  their  own,  are  handicapped  in  the  race 
of  life  by  physical  or  intellectual  defects,  or  find 
themselves  plunged  into  an  unfavorable  and  demor- 


144  SOCIAL  JUSTICE 

alizing  environment,  from  which,  unassisted,  they 
are  unable  to  extricate  themselves.  The  labor 
theory  is  therefore  defective  in  that,  as  a  principle 
of  justice,  it  does  not  include  such  an  obligation. 
Mill  exposes  this  defect  when  he  says,  "The  pro- 
portioning of  remuneration  to  work  done  is  really 
just  only  in  so  far  as  the  more  or  less  of  the  work 
is  a  matter  of  choice ;  when  it  depends  on  natural 
differences  of  strength  or  capacity,  this  principle  of 
remuneration  is  in  itself  an  injustice ;  it  is  giving 
to  those  who  have  —  assigning  to  those  who  are 
already  most  favored  by  nature."  ^ 

Finally,  it  is  to  be  observed  that  a  rigid  applica- 
tion of  the  labor  theory  involves  the  denial  that 
the  young,  the  aged,  the  sick,  or  the  incapacitated 
from  whatever  source,  have  a  right  to  support. 
They  do  not  work,  therefore,  according  to  the 
labor  theory,  they  cannot  claim,  except  as  a  matter 
of  charity,  the  means  absolutely  necessary  for  sub- 
sistence. It  is  true  that  socialists  generally,  while 
accepting  the  labor  theory,  maintain  also  that  every 
one  who  does  the  best  he  can  to  support  himself,  but 
fails,  should  be  guaranteed  at  least  a  sufficiency  for 
existence.     They  do  so  illogically,  however. 

The  objections  which  we  have  just  stated  demon- 
strate conclusively  that  the  labor  theory  of  reward 
cannot  be  accepted  as  an  absolute  principle  of  desert. 
But,  as  we  shall  now  show,  even  were  it  accepted  as  an 
ethically  valid  rule,  there  would  be  insurmountable 
difficulties  in  the  way  of  its  application. 

1  Political  Economy,  Book  II,  Chapter  I,  §  4, 


CANONS   OF   DISTRIBUTIVE   JUSTICE  145 

The  acceptance  of  the  labor  theory  necessarily 
involves  a  socialistic  organization  of  society.  In 
order  to  labor  it  is  necessary  for  the  laborer  to  own, 
or  at  least  to  be  in  possession  of,  the  raw  materials 
and  the  instruments  of  production.  As  we  have 
already  seen,  the  simple  fact  of  priority  of  occupa- 
tion, or  taking  into  possession,  is  not  ethically 
adequate  to  support  a  right  to  continued  possession 
or  ownership.  This  means,  then,  that  society  or  the 
State  must  establish  and  enforce  some  positive  prin- 
ciple or  principles  in  accordance  with  which  the 
implements  of  mdustry  shall  be  open  to  the  use  of 
all  upon  equal  terms.  But  this  is  possible  only  where 
the  State  itself  owns  and  operates  them.  First  of  all, 
then,  the  application  of  the  labor  theory  involves  all 
those  political  difficulties  attendant  upon  the  estab- 
lishment and  maintenance  of  a  socialistic  State.  But, 
passing  these  by,  let  us  see  what  economic  difficulties 
there  would  be  to  overcome,  were  such  an  orsrani- 
zation  of  society  successfully  established  and  its 
authority  rigidly  and  satisfactorily  maintained. 

The  economic  problems  that  would  have  to  be 
solved  would  be  these :  — 

First,  the  determination  of  the  kinds  of  work  to  be 
undertaken ;  that  is,  the  kinds  of  products  to  be  created. 

Secondly,  the  determination  of  the  relative  amounts 
of  t!ie  several  products  to  be  produced. 

Thudly,  the  just  apportionment  of  the  different 
kinds  of  employments  amongst  individual  workers. 

Fourthly,  and  finally,  the  just  distribution  of  prod- 
ucts amongst  the  workers. 


146  SOCIAL  JUSTICE 

Taking  up  these  tasks  in  their  order,  we  find  that 
each  of  them,  involves,  so  long  at  least  as  the  labor 
theory  is  adhered  to,  almost  if  not  quite  insuperable 
difficulties. 

First,  then,  as  regards  the  necessity  of  determining 
what  commodities  shall  be  produced.  Products  have  a 
value,  not  simply  because  they  are  the  fruits  of  labor, 
but  because  they  are  desired  by  individuals.  Thus 
the  State  cannot  guarantee  to  its  workers  rewards 
proportioned  to  labor  performed,  unless  it  has  the 
right  to  see  to  it  that  the  labor  be  employed  for  the 
creation  of  socially  useful  articles ;  that  is,  articles 
for  which  there  is  a  demand.  It  cannot,  for  example, 
recognize  the  right  to  remuneration  of  the  individual 
who  had  labored,  however  arduously,  in  transporting 
a  pile  of  stones  from  one  place  to  another,  and  then 
in  carrying  them  back  to  their  original  resting-place. 
Nor  is  this  all.  Not  only  must  any  governing 
authority  which  has  the  entire  control  of  the  pro- 
ductive wealth  of  a  community,  and  founds  this 
right  to  control  upon  an  ethical  basis,  —  not  only 
must  such  an  authority  see  to  it  that  only  such  goods 
are  produced  as  have  a  value  for  the  satisfaction  of 
individual  wants,  but  it  must  determine  in  each  case 
whether  the  want  which  creates  the  demand  is  one 
that  should  be  satisfied.  No  advocate  of  socialism 
maintains  that  provision  should  be  made  for  satisfy- 
ing all  wants,  however  vicious  and  demoralizing  their 
character.  Moreover,  the  relative  intensity  of  those 
wants  that  are  recognized  as  proper  would  have  to  be 
considered.     No  argument  is  required  to  show  that 


CANONS   OF   DISTRIBUTIVE  JUSTICE  147 

the  most  necessitous  needs  should  be  the  first  satis- 
fied, the  less  urgent  next,  and  the  least  urgent  last. 
Thus,  in  determining  the  forms  of  industry  to  be 
carried  on,  it  is  seen  that  the  socialistic  State  would 
have  the  threefold  task  of  ascertaining  the  existence 
of  a  want,  of  determining  its  propriety,  and  of  esti- 
mating its  intensity  as  compared  with  other  known 
and  approved  desires. 

Under  present  conditions  the  existence  and  inten- 
sity of  a  want  is  made  clear  by  the  free  demands  of 
individuals.  The  propriety  of  wants  is  passed  upon 
by  the  State  only  in  exceptional  cases,  where, 
under  the  exercise  of  its  police  powers,  it  steps  in 
either  absolutely  to  prohibit  the  carrying  on  of  such 
occupations  as  are  deemed  inimical  to  public  health 
or  morality,  or  to  see  that  proper  conditions  of  opera- 
tion are  observed  in  those  trades  that  are  permitted. 
There  is  indeed  no  inherent  reason  why,  under  a 
socialistic  regime,  the  same  conditions  should  not 
prevail.  As  a  matter  of  fact,  however,  were  the 
State  itself  in  direct  control  of  all  production,  the 
temptation  upon  those  in  power  to  dictate  generally 
what  commodities  should  be  produced  would  inevita- 
bly be  very  great.  If  not  absolutely  necessary,  there 
would  therefore  be  an  imminent  danger  that  that 
freedom  of  demand  which  now  exists  would  be 
seriously  curtailed.  That  such  a  curtailment  would 
subject  the  individual  to  a  most  oppressive  form  of 
control  need  not  be  pointed  out.  It  is  only  by 
satisfying  his  wants  that  man  realizes  his  individual- 
ity.    If,  therefore,  man    cannot  develop  himself,  in 


148  SOCIAL   JUSTICE 

the  main  at  least,  according  to  his  own  ideas,  he  is 
subjected  to  a  slavery  of  the  worst  kind. 

From  the  socialistic  problem  of  determining  the 
different  kinds  of  products  to  be  created,  we  turn 
next  to  the  task  of  ascertaining  the  relative  amounts 
to  be  produced.  This  task  is  necessary  in  order  that 
the  supply  shall  be  made  at  least  approximately 
equal  to  the  demand.  Under  present  conditions  this 
is  brought  about  automatically  by  free  competition. 
When  the  demand  for  a  given  commodity,  as  com- 
pared with  its  supply,  is  relatively  strong,  prices  rise. 
This  attracts  labor  and  capital  into  the  field,  and  an 
increased  supply  is  the  result.  Where  the  supply  is 
greater  than  the  demand,  prices  fall,  and  money  and 
labor  are  drawn  away  to  more  remunerative  employ- 
ments. Thus,  at  any  given  time,  the  exchange  value 
of  commodities  depends  upon  the  market  conditions 
of  supply  and  demand  rather  than  the  actual  cost  of 
production. 

In  a  socialistic  regime  which  recognized  this  fact, 
that  is,  which  permitted  individuals  to  be  remuner- 
ated for  their  work  according  to  the  value  of  their 
products  as  fixed  by  the  law  of  supply  and  demand, 
and  also  allowed  workers  freely  to  pass  from  one 
form  of  employment  to  another,  the  difficulty  of 
determining  the  respective  amounts  of  commodities 
to  be  produced  would  solve  itself.  But  in  a  social- 
istic State,  such  as  we  are  now  concerned  with,  which 
declares  that  labor  is  the  sole  creator  of  value,  and 
that  the  laborer  should  be  rewarded  in  exact  propor- 
tion to  the  amount  of  labor  expended,  such  an  adjust- 


CANONS    OF   DISTRIBUTIVE   JUSTICE  149 

ment  would  be  impossible.  That  is  to  say,  under 
such  a  regime,  the  laborer  would  be  entitled  to  a 
wage  dependent  wholly  upon  the  amount  and  char- 
acter of  his  work,  and  quite  irrespective  of  the  ex- 
change value  that  his  products  might  have.  There 
would,  therefore,  be  no  force  of  self-interest  to  attract 
laborers  into  the  fields  of  production  where  additional 
workers  might  be  needed  to  supply  a  demand,  nor 
induce  them  to  leave  those  fields  where  an  excess  of 
supply  had  made  itself  felt.  It  would  therefore  be 
necessary  for  the  governing  authorities  to  resort  to 
compulsory  assignments  and  reassignments  of  work 
as  demands  for  commodities  or  services  varied.  But, 
when  asked  upon  what  principle  or  principles  of  jus- 
tice such  compulsory  apportionments  of  labor  could 
be  based,  socialistic  philosophy  has  made  no  satis- 
factory answer. 

The  third  problem  which  we  have  mentioned  that 
any  socialistic  State  would  have  to  solve,  is  the  proper 
apportionment  of  the  different  kinds  of  employment 
amongst  the  mdividual  workers.  In  this  assignment 
of  tasks,  reference  must  necessarily  be  had  both  to 
economic  efficiency  and  to  the  deserts  of  the  indi- 
viduals concerned.  Both  economic  expediency  and 
distributive  justice  would  seem  to  demand  that  work 
should  be  apportioned  according  to  ability  possessed ; 
namely,  that  to  each  individual  should  be  assigned 
that  form  of  employment  to  which  he  is  best  suited 
by  natural  powers  and  aptitudes.  Now,  to  secure 
this  result,  the  socialists  claim  that  it  will  not  be 
necessary  for  the  State  to  assume  the  impossible  task 


150  SOCIAL   JUSTICE 

of  itself  ascertaining  the  respective  capacities  of  the 
individual  w^orkers  and  of  distributing  employments 
accordingly,  but  that  the  same  result  can  be  approx- 
imately obtained  by  varying  the  rates  of  remunera- 
tion offered  for  different  forms  of  industry.  That  is 
to  say,  that,  though  labor  is  taken  as  the  standard  of 
measurement,  it  is  not  to  be  measured  solely  by  the 
element  of  time.  Its  agreeableness  or  disagreeableness 
and  its  efficiency  are  to  be  taken  into  consideration. 
Thus,  by  offering  lower  wages  for  the  less  arduous 
forms  of  labor,  the  socialists  claim  that  there  will 
be  checked  that  rush  for  them  which  man's  natural 
indisposition  for  labor  would  occasion ;  while,  by 
placing  an  equal  value  on  all  products  of  the  same 
kind,  men  will  be  stimulated  to  seek  that  form  of 
employment  where,  by  reason  of  natural  ability,  they 
will  be  able  to  earn  the  most. 

But  this  equality  of  valuation  of  the  products  in 
the  same  industry  could  not  justly  be  made  absolute. 
Fairness  would  demand  that  equality  of  valuation 
should  prevail  only  where  equality  of  conditions 
existed.  Therefore  valuation  of  products  would 
have  to  vary  even  in  the  same  industry,  according  to 
natural  advantages  or  disadvantages,  such  as  loca- 
tion, character  of  machinery  used,  climate,  etc., 
under  which  production  is  carried  on.  Thus  there 
would  have  to  be  fixed  by  the  State  a  special  rate  of 
wages  for  each  productive  establishment.  Further- 
more, these  rates,  once  established,  would  have  to  be 
changed  from  time  to  time,  as  the  relative  advan- 
tages and  disadvantages  of  the  different  establish- 


CANONS    OF   DISTRIBUTIVE   JUSTICE  151 

ments  varied.  Thus  in  a  newly  opened  coal-mine, 
where  coal  is  near  the  surface  and  easily  mined,  a 
low  rate  relative  to  other  mines  would  have  to  be 
established.  But  as  greater  depths  were  reached,  or 
as  the  vein  became  less  pure,  the  rate  would  have  to 
be  raised. 

The  stupendousness  of  such  a  comparison  and  equal- 
ization of  rates  as  is  called  for  by  the  above,  when 
applied  to  all  the  industries  of  -a  country  and  to  each 
of  the  several  factories  and  institutions  within  each 
of  the  industries,  is  sufficiently  plain.  Even  were  we 
sanguine  enough  to  believe  that  such  a  harmonizing 
of  labor  rights  were  possible  of  performance  by  any 
governing  authority,  however  sapient  and  upright,  it 
cannot  be  believed  that  the  correctness  of  such  adjust- 
ment could  be  made  so  plain  to  the  ordinary  mind 
that  no  general  discontent  would  be  aroused.  Rather, 
judging  human  nature  as  we  know  it,  —  a  nature 
which  Hobbes,  we  think,  has  said  is  so  constituted 
that  the  axioms  of  mathematics  would  be  disputed, 
were  self-interests  involved,  —  there  would  be  an 
almost  certainty  that  each  special  institution,  and  each 
industry  generally,  would  believe  itself  discriminated 
against. 

Finally,  having  fulfilled  all  the  foregoing  conditions, 
there  would  fall  upon  that  socialistic  State,  which 
should  accept  the  labor  standard,  the  task  of  appor- 
tioning products  among  the  workers  strictly  accord- 
ing to  the  amount  of  effective  work  done ;  or,  in 
other  words,  of  securing  to  them  the  full  produce  of 
their  labor.      This,  of  course,  would  not  mean  the 


152  SOCIAL   JUSTICE 

division  among  them  of  absolutely  the  entire  amount 
produced.  There  would  necessarily  have  to  be  sub- 
tracted enough  to  defray  all  public  expenses,  and  to 
provide  the  needed  capital  and  machinery.  But  no 
real  objection  could  be  made  to  this,  for  all  would 
participate  in  the  benefits  to  be  derived  from  the 
expenditure  of  the  funds  so  retained. 

Now,  in  apportioning  to  each  individual  the  produce 
of  his  own  work,  the  chief  difficulty  under  modern 
conditions  of  production  would  naturally  be  the  deter- 
mination of  what  that  produce  was.  Where  the 
division  of  labor  has  been  carried  to  an}^  extent,  the 
cooperation  of  a  number  of  workers,  each  performing 
a  different  kind  of  work  and  assisted  by  different 
kinds  of  machinery,  is  required.  Evidently,  in  such 
cases,  the  determination  of  just  the  part  played  by 
each  class  of  workers,  and  of  each  worker  within  each 
class,  would  be  a  practical  impossibility.  Only  very 
rough  approximations  could  be  made.  As  regards 
simply  the  maintaining  of  the  proper  proportions  of 
remuneration  between  the  different  workers,  not  even 
that  justice  which  is  realized  by  the  present  wages 
system  could  be  hoped  for.  Under  present  condi- 
tions, the  necessity  for  economic  efficiency  compels 
the  employer  to  recognize  and  reward  exceptional 
industry  or  capacity.  But  with  all  industries  under 
governmental  control,  general  scales  of  reward,  which 
could  not,  under  ordinary  conditions,  be  departed 
from,  would  have  to  be  established  in  order  to  pre- 
vent unjust  official  discriminations.  Thus  both  indi- 
vidual desert  and  economic  efficiency  would  have  to 


CANONS   OF    DISTEIBUTIVE   JUSTICE  153 

be,  to  this  extent  at  least,  sacrificed.  Industry 
and  efficiency  would  have  recognition,  but  they 
would  have  it  as  judged  by  the  performances  of 
groups  of  workers,  and  not,  except  in  special  cases, 
as  estimated  by  the  achievements  of  individuals. 
Thus,  if  a  worker  were  but  one  in  a  thousand,  he 
would  receive  but  one-thousandth  of  the  increased 
product  due  to  any  special  industry  or  capacity  that 
he  might  display. 

The  hopelessness  of  being  able,  under  modern  forms 
of  production,  to  discover  the  actual  contribution  of 
the  individual  worker  to  the  completed  product  has 
necessarily  been  recognized  by  socialists.  They  have 
therefore  been  forced  to  erect  an  abstract  standard 
by  which  to  estimate  the  labor  performance  of  each 
worker.  In  general  this  standard  has  been  made  to 
take  the  form  of  a  unit  representing  the  amount  of 
product  that  a  normal  day's  work  of  normal  efficiency 
can  produce  in  a  given  industry.  By  this  unit  the 
efficiency  of  all  other  labor  is  to  be  measured.  But, 
in  order  to  make  this  measurement  fair,  it  is  neces- 
sary, as  we  have  pointed  out  a  few  pages  back,  that 
employments  should  be  graded  according  to  agree- 
ableness  or  disagreeableness,  and  that  each  factory, 
mine,  or  other  establishment  of  production  should 
have  a  special  rate. 

Rodbertus,  as  we  have  said,  has,  perhaps,  made  the 
most  serious  attempt  to  outline  a  plan  for  realizing 
in  practice  a  distribution  of  products  according  to  the 
labor  theory.  It  is  to  be  observed,  however,  that 
Rodbertus  greatly  simplifies  the  problem  by  regard- 


154  SOCIAL  JUSTICE 

ing  all  goods  as  the  product  of  manual  labor.  Marx 
and  socialists  generally,  however,  recognize  that  dis- 
tinctions should  be  made,  not  only  as  between  em- 
ployments of  varying  degrees  of  pleasantness,  but  as 
between  manual  and  purely  intellectual  labors.  This 
is  of  course  absolutely  necessary  in  order  to  save  the 
socialistic  school  from  an  obvious  absurdity.  At  the 
same  time  it  is  a  clear  departure  from  the  pure  labor 
theory.  This  departure  is  usually  disguised  under 
the  form  of  an  assertion  that  an  hour's  work  of  one 
form  of  labor,  such,  for  example,  as  painting  or 
teaching,  shall  be  taken  as  equal,  say,  to  ten  or 
twenty  hours  of  normal  manual  labor.  Now,  were 
such  a  difference  between  the  respective  valuations 
of  an  hour's  labor  in  each  case  based  upon  the  idea 
that  a  proportionate  difference  in  degree  of  effort, 
or  inconvenience,  or  suffering  is  involved,  there 
might  be  ground  for  maintaining  that  the  labor 
theory  had  not  been  abandoned.  But,  where  this 
is  not  the  basis  of  the  distinction,  and  where,  in 
fact,  the  higher  reward  is  made  to  go  to  the  labor 
involving  no  more  effort,  and  often  far  less  incon- 
venience or  suffering,  some  standard  other  than  labor 
is  implied.  Bohm-Bawerk,  in  criticising  Marx's  posi- 
tion upon  this  point,  says :  "  The  naivete  of  this 
theoretical  juggle  is  almost  stupefying.  That  a  day's 
labor  of  a  sculptor  may  be  considered  equal  to  five 
days'  labor  of  a  miner  in  many  respects — for  instance 
in  money  valuation  —  there  can  be  no  doubt.  But 
that  twelve  hours'  labor  of  a  sculptor  actually  are 
sixty  hours'  common  labor  no  one  will  maintain.  .  .  . 


CANONS    OF   DISTRIBUTIVE   JUSTICE  155 

Men  may  invent  what  fiction  they  please;  there  is 
here  an  exception  to  the  rule  asserted  that  the  ex- 
change value  of  goods  is  regulated  by  the  amount  of 
human  labor  incorporated  in  them.  Suppose  that  a 
railway  generally  graduates  its  tariff,  not  according 
to  the  distances  travelled  by  persons  or  goods,  but,  as 
regards  one  part  of  the  line  in  which  the  working 
expenses  are  particularly  heavy,  arranges  that  one 
mile  shall  count  as  two,  can  it  be  maintained  that 
the  length  of  distances  is  really  the  exclusive  prin- 
ciple in  fixing  the  railway  tariff  ?  Certainly  not ;  by 
a  fiction  it  is  assumed  to  be  so,  but  in  truth  the 
application  of  that  principle  is  limited  by  another 
consideration — the  character  of  the  distances."^ 

^  Capital  and  Interest,  p.  384. 


CHAPTER  VI 

THE  LABOR  THEORY  AS  APPLIED  TO  PROPERTY  IN 

LAND 

We  turn  now  to  the  bearing  of  the  labor  theory 
upon  the  justice  or  injustice  of  private  ownership  of 
land.  A  number  of  those  who  have  accepted  the 
labor  theory  have  drawn  the  conclusion  that  all 
valuable  objects  not  the  result  of  human  labor  should 
be  considered  as  free  gifts  of  nature  or  of  nature's 
Creator,  and,  as  such,  intended,  not  for  the  special 
advantage  of  any  particular  individuals,  but  for  the 
^„ welfare  of  mankind  at  large.  It  is  in  this  category 
that  land  has  been  placed.  Land,  it  has  been  held, 
is,  by  its  very  nature,  sui  generis,  and,  as  such, 
private  ownership  of  it  must  be  justified,  if  justified 
at  all,  by  reasons  different  from  those  applicable  to 
other  forms  of  property. 

Locke's  peculiar  justification  of  property  in  land, 
under  the  labor  theory,  we  have  already  mentioned. 
The  Physiocrats  justified  land  ownership  on  the 
ground  that  it  is  necessary  in  order  that  there  may 
be  secured  the  right  of  ownership  which  labor  creates. 
In  developing  this  reason  they  thus  reached  what 
was  practically  a  doctrine  of  simple  expediency. 
Thus  Dupont  de   Nemours,  in  his  Origifie  et  j^r ogres 

156 


THE   LABOR   THEORY  157 

d\me  science  nouvelle,  writes :  "  In  employing  his 
person  and  his  movable  wealth  on  the  labor  and 
outlay  necessary  to  cultivation,  man  acquires  prop- 
erty in  the  soil  on  which  he  has  labored.  To  de- 
prive him  of  that  soil  would  be  to  rob  him  of  his 
labor  and  the  wealth  he  has  laid  out  on  the  cultiva- 
tion ;  it  would  be  to  violate  his  property  in  his  own 
person  and  movables.  In  acquiring  property  in  the 
land,  he  acquires  property  in  the  fruits  produced  by 
it,  and  this  was  the  object  of  all  his  expenditure, 
and  the  object  for  which  he  seeks  to  gain  that  prop- 
erty in  land.  Unless  [and  here  the  utilitarian 
argument  begins]  he  had  this  property  in  the 
fruits  of  the  soil,  no  one  would  spend  wealth  or 
labor  on  the  land ;  there  would  be  no  landlords ; 
and  the  soil  would  remain  waste,  to  the  great  detri- 
ment of  population,  present  and  future."  ^ 

This  argument  tacitly  implies  that  ownership  of 
land  should  be  recognized  only  where  the  owner  is 
also  an  improver  and  cultivator.  As  a  matter  of 
fact,  however,  though  the  Physiocrats  often  criticised 
absentee  landlordism,  they  did  not  declare  the  in- 
validity of  their  titles.  The  time  was  not  ripe  for 
such  an  assertion.  As  Bonar  says :  "  The  time  had 
not  come  for  economical  discussions  to  touch  the 
deepest  foundations  of  property.  The  communism 
of  men  like  Morelly  was  an  isolated  opinion.  There 
was  more  need  in  the  beginning  of  the  second  half 
of  that  century  for  the  assertion  of  liberty  in  the 
sense  of  the  removal  of  obstacles." 

^  Quoted  by  Bonar  in  his  Philosophy  and  Political  Economy,  p.  143. 


158  SOCIAL  JUSTICE 

It  was  in  England  that  the  demand,  based  upon 
the  labor  theory,  was  first  put  forward  that  all  land 
should  be  owned  in  common ;  and  it  is  in  England 
that  at  the  present  time  this  demand  is  most  loudly 
voiced. 

In  1796  was  published  the  work  of  Thomas  Spence 
entitled  The  Meridian  San  of  Liberty  ;  or  the  Whole 
Rights  of  Man  displayed  and  most  accurately  defined. 
In  this  work  the  spoliation  of  the  laboring  classes  by 
the  landlords  is  denounced,  and  the  equal  right  of 
all  to  the  land  asserted.*  Other  writers  from  time 
to  time  have  repeated  this  view.  But  most  conspic- 
uous among  all  English  writers  who  have  substan- 
tially advocated  land  nationalization  is  John  Stuart 
Mill. 

Notwithstanding  his  assertion,  which  we  have 
quoted  some  pages  back,  that  the  labor  theory  of 
distribution  involves  the  inherent  objection  that,  in 
its  rewards,  it  makes  no  distinction  between  that 
efficiency  that  comes  from  natural  qualifications,  and 
that  which  is  the  result  of  applied  effort  or  of  slowly 
and  patiently  acquired  capacity.  Mill  elsewhere  ac- 
cepts the  theory  as  absolutely  valid.  In  his  Political 
Economy  he  says:  "The  institution  of  property, 
where  limited  to  its  essential  elements,  consists  in 
the  recognition  in  each  person  of  a  right  to  the 
exclusive  disposal  of  what  he  or  she  have  produced 
by  their  own  exertions,  or  received  either  by  gift  or 
by  fair  agreement,  without  force  or  fraud,  from  those 

1  For  an  account  of  Spence's  views,  and  his  influence,  see  Menger, 
The  Right  to  the  Whole  Produce  of  Labor,  pp.  147-149. 


THE   LABOR   THEORY  ^  159 

who  have  produced  it.  The  foundation  of  the  whole 
is  the  right  of  the  producers  to  what  they  themselves 
have  produced."  ^  But  this  qualification  for  private 
ownership  cannot  be  pleaded,  he  goes  on  to  say,  in 
the  case  of  land,  for  land  is  not  the  produce  of  labor. 
Thus,  by  its  very  nature,  as  he  conceives  it,  land  is 
marked  off  from  all  manufactured  goods,  and,  as  he 
declares,  "  if  the  land  derived  its  productive  power 
wholly  from  nature,  and  not  at  all  from  industry,  or 
if  there  were  any  means  of  discriminating  what  is 
derived  from  each  source,  it  not  only  would  not  be 
necessary,  but  it  would  be  the  height  of  injustice,  to 
let  the  gift  of  nature  be  engrossed  by  individuals."  ^ 
As  thus  possessing  this  character  as  a  gift  of 
nature,  and  therefore  intended  by  Natural  Law  for 
the  equal  benefit  of  all,  private  ownership  of  land  is 
to  be  justified,  if  justified  at  all.  Mill  goes  on  to  say, 
upon  special  grounds  of  economic  expediency.  Thus, 
in  effect,  he  holds  that  labor  gives  such  a  natural 
or  abstract  right  to  ownership  of  manufactured 
goods  no  economic  justification  for  it  is  needed ; 
whereas  property  in  land  must  ever  depend  upon 
simple  utilitarian  considerations.  Furthermore,  and 
what  seems  strangely  inconsistent  with  Mill's  gen- 
eral doctrines,  utilitarian  considerations  can  never, 
he  declares,  create  so  sacred  a  right  in  the  landlord 
as  can  labor  in  the  owner  of  other  forms  of  wealth. 
"When  the  '  sacredness  of  property '  is  talked  about," 
he  says,  "  it  should  always  be  remembered  that  any 
such  sacredness  does  not  belong  in  the  same  degree 

1  Book  II,  Chapter  11.  ^  /cfem,  loc.  cit. 


160  SOCIAL  JUSTICE 

to  landed  property.  No  man  made  the  land.  It  is 
the  origmal  mheritance  of  the  whole  species.  Its 
appropriation  is  wholly  a  question  of  general  expe- 
diency. When  private  property  in  land  is  not  expe- 
dient, it  is  unjust.  [Would  he  hold  it  consistent 
with  the  general  doctrines  of  utilitarianism  which 
he  accepts,  to  say  that  this  would  not  be  true  as  to 
other  forms  of  property  ?]  It  is  no  hardship  to  any 
one  to  be  excluded  from  what  others  have  produced. 
.  .  .  But  it  is  some  hardship  to  be  born  into  the 
world  and  to  find  all  nature's  gifts  previously 
engrossed,  and  no  place  left  for  the  newcomer." 

The  economic  necessity  for  landlordism  Mill  readily 
grants,  placing  it  upon  the  obvious  grounds  that 
"  the  strongest  interest  which  the  community  and 
the  human  race  have  in  the  land  is  that  it  would 
yield  the  largest  amount  of  food  and  other  necessary 
or  useful  things  required  by  the  community.  .  .  . 
In  order,  therefore,  to  give  the  greatest  encourage- 
ment to  production,  it  has  been  thought  right  that 
individuals  should  have  an  exclusive  property  in 
land,  so  that  they  may  have  the  most  possible  to 
gain  by  making  the  land  as  productive  as  they  can, 
and  may  be  in  no  danger  of  being  hindered  from 
doing  so  by  the  interference  of  any  one  else.  This 
is  the  reason  usually  assigned  for  allowing  land  to  be 
private  property,  and  it  is  the  best  reason  that  can 
be  given."  ^ 

But  if,  then,  this  be  the  sole  justification  for  pri- 

1  "  The  Right  of  Property  in  Land,"  Dissertations  and  DiscussionSy 
Vol.  V. 


THE  LABOR   THEORY  161 

vate  ownership  of  land,  it  necessarily  follows,  says 
Mill,  first,  that  the  landlord  should  have  his  title 
recognized  only  so  long  as  he  is  an  improver  or  cul- 
tivator ;  ^  and,  secondly,  that  in  so  far  as,  during  his 
holding  of  it,  a  piece  of  land  increases  in  value  by 
reason  of  general  social  causes,  and  not  as  a  result  of 
labor  by  him  expended  or  capital  applied,  such  in- 
crease should  belong  to  society.^ 

The  means  suggested  by  Mill  for  securing  to  soci- 
ety this  increase,  or  "  unearned  increment,"  is  that 
the  landlords  should  hereafter  pay  a  special  tax 
"  within  the  limits  of  the  increase  which  may  accrue 
to  their  present  income  from  causes  independent  of 
themselves."  "  From  the  present  date,  or  any  subse- 
quent time  at  which  the  legislature  may  think  fit  to 
assert  the  principle,  I  see  no  objection,"  he  says,  "  to 
declaring  that  the  future  increment  of  rent  should  be 
liable  to  special  taxation ;  in  doing  which  all  injus- 

^  "  These  are  the  reasons  which  form  the  justification,  in  an  eco- 
nomical point  of  view,  of  property  in  land.  It  is  seen  that  they  are 
only  valid,  in  so  far  as  the  proprietor  of  the  land  is  its  improver.  .  .  . 
In  no  sound  theory  of  private  property  was  it  ever  contemplated  that 
the  proprietor  of  the  land  should  be  merely  a  sinecurist  quartered  on 
it."     Political  Economy,  Book  II,  Chapter  II. 

2  "  Giving  all  the  weight  to  this  consideration  which  it  is  entitled 
to,  the  claim  it  gives  to  the  landlord  is  not  to  all  the  possible  proceeds 
of  the  land,  but  to  such  part  of  them  only  as  are  the  results  of  his 
own  improvements,  or  of  improvements  made  by  his  predecessors  in 
whose  place  he  stands.  Whatever  portion  of  them  is  due,  not  to  his 
labor  or  outlay,  but  to  the  labor  and  outlay  of  other  people,  should 
belong  to  those  other  people.  ...  If  the  nation  at  large,  by  their 
successful  exertions  to  increase  the  wealth  of  the  country,  have  en- 
hanced the  value  of  the  land  independently  of  anything  done  by  the 
landlord  or  the  tenant,  that  increase  of  value  should  belong  to  the 
nation."  "  The  Right  of  Property  in  Land,"  Dissertations  and  Discus- 
sions, Vol.  V. 


162  SOCIAL  JUSTICE 

tice  to  landlords  would  be  obviated  if  the  present 
market  price  of  their  land  were  secured  to  them,  since 
that  includes  the  present  value  of  all  future  expecta- 
tions. With  reference  to  such  a  tax,  perhaps  a  safer 
criterion  than  either  a  rise  of  rents  or  a  rise  of  the 
price  of  corn  would  be  a  general  rise  in  the  price  of 
land.  It  would  be  easy  to  keep  the  tax  within  the 
amount  which  would  reduce  the  market  value  of  land 
below  the  original  valuation;  and  up  to  that  point, 
whatever  the  amount  of  the  tax  might  be,  no  injus- 
tice would  be  done  to  the  proprietors."  ^ 

Closely  resembling,  but  more  radical  than  the  views 
of  Mill  regarding  land  ownership,  are  those  of  Henry 
George,  as  elaborated  in  his  famous  work.  Progress 
and  Poverty.  George  accepts  the  labor  theory  of 
property  unreservedly.  Both  natural  and  divine  law 
declare,  he  says,  the  indefeasible  right  of  an  owner- 
ship founded  on  labor.  "  As  to  the  right  of  owner- 
ship, we  hold,"  he  says,  "  that,  being  created  individ- 
uals, with  individual  wants  and  powers,  men  are 
individually  entitled  (subject  of  course  to  the  moral 
obligations  that  arise  from  such  relations  as  those  of 
the  family)  to  the  use  of  their  own  powers  and  the 
enjoyment  of  the  results.  There  thus  arises,  anterior 
to  human  law,  and  deriving  its  validity  from  the  law 
of  God,  a  right  of  private  ownership  in  things  pro- 
duced by  labor  —  a  right  that  the  possessor  may 
transfer,  but  of  which  to  deprive  him  without  his  will 

1 "  The  Right  of  Property  in  Land."  For  the  practical  difficulties 
that  such  a  scheme  as  Mill's  would  involve,  see  Walker,  Land  and  its 
Rent,  pp.  121-141. 


THE   LABOR   THEORY  163 

is  theft.  This  right  of  property,  originating  in  the 
right  of  the  mdividual  to  himself,  is  the  only  full  and 
complete  right  of  property.  It  attaches  to  things 
produced  by  labor,  but  cannot  attach  to  things  cre- 
ated by  God."  ^  And  again,  he  says,  "  Thus  there  is 
to  everything  produced  by  human  exertion  a  clear 
and  indisputable  title  to  exclusive  possession  and  en- 
joyment which  is  perfectly  consistent  with  justice,  as 
it  descends  from  the  original  producer,  in  whom  it 
rested  by  natural  law.  .  .  .  There  can  be  no  other 
rightful  title,  because  there  is  no  other  natural  right 
from  which  any  other  title  can  be  derived."  ^ 

This  being  so,  private  ownership  in  land,  says 
George,  is  unjustifiable  for  two  reasons :  first,  because 
it  is  not  a  product  of  labor ;  and,  secondly,  because 
free  access  to  it  by  all  is  necessary  in  order  that  labor 
may  find  the  wherewithal  upon  which  to  employ 
itself.  "  Private  property  in  land  is  wrong.  For  the 
right  to  the  produce  of  labor  cannot  be  enjoyed  with- 
out the  right  to  the  free  use  of  the  opportunities 
offered  by  nature,  and  to  admit  the  right  of  prop- 
erty in  these  is  to  deny  the  right  of  property  in  the 
produce  of  labor."  ^ 

George,  of  course,  distinguishes  between  improve- 
ments made  upon  land  and  the  naturally  given 
values  of  the  soil,  and  it  is  only  to  these  latter  that 
he  has  reference  when  he  speaks  of  land  as  the  gift 
of  God  to  mankind  as  a  whole,  and,  as  such,  not 
appropriable  by  individuals.     When  a  man  cultivates 

1  Op.  cit.,  Book  I,  Chapter  I.  ^  jjem,  Book  VII,  Chapter  I. 

8  Idem,  Book  VII,  Chapter  I. 


164  SOCIAL  JUSTICE 

the  soil,  says  George,  lie  acquires  a  right  of  property 
in  the  produce  which  his  labor  brings  forth,  but  not 
in  the  soil  on  which  it  grew  ;  "for  these  are  the  con- 
tinuing gifts  of  God  to  all  generations  of  men,  which 
all  may  use,  but  none  may  claim  as  his  alone."  ^  But 
though  labor  employed  upon  the  soil  does  not  give  a 
right  to  the  soil  itself,  it  does  create  a  right  to  posses- 
sion ;  for  "  as  men  begin  to  cultivate  the  ground  and 
expend  their  labor  in  permanent  works,  private  pos- 
session of  the  land  on  which  labor  is  thus  expended 
is  needed  to  secure  the  right  of  property  in  the  prod- 
ucts of  labor."  ^ 

Thus  far  it  is  seen  that  the  reasoning  of  George  is 
identical  with  that  of  Mill,  except  that  with  George 
the  necessity  of  guaranteeing  to  the  individual  the 
products  of  his  labor  gives  rise  to  the  right  of 
"possession,"  whereas  with  Mill  it  is  interpreted  as 
justifying  "  proprietorship."  Possession  and  pro- 
prietorship are  very  different  things,  says  George : 
"  The  purpose  of  the  one,  the  exclusive  possession 
of  land,  is  merely  to  secure  the  other,  the  exclusive 
ownership  of  the  products  of  labor ;  and  it  can  never 
rightfully  be  carried  so  far  as  to  impair  or  destroy 
this.  While  any  one  may  hold  exclusive  possession 
of  the  land  so  far  as  it  does  not  interfere  with 
the  rights  of  others,  he  can  rightfully  hold  it  no 
farther."  The  problem  thus  becomes,  "to  com- 
bine the  advantages  of  private  possession  with  the 
justice  of  common  ownership."  To  do  this,  "  it  is 
only  necessary  to  take  for  the  common  uses  what 

^  Quoted  from  his  work,  The  Condition  of  Labor.  ^  Idem. 


THE   LABOR   THEORY  165 

value  attaches  to  land  irrespective  of  any  exertion 
of  labor  on  it."  ^ 

The  manner  in  which  George  proposes  to  do  this 
is  quite  similar  to  that  proposed  by  Mill,  namely, 
the  imposition  of  a  tax  to  an  amount  sufficient  to 
absorb  all  income  that  is  derived  from  the  original 
or  socially  acquired  values  of  the  soil.  That  is  to 
say,  he  would  not  nationalize  the  land  in  the  sense 
of  making  the  State  the  general  landlord,  but  would 
simply  have  society  appropriate  its  net  produce. 
"Consider,"  he  says,  "what  rent  is.  It  does  not 
arise  spontaneously  from  the  land ;  it  is  due  to 
nothing  that  the  landowners  have  done.  It  rep- 
resents a  value  created  by  the  whole  community. 
Let  the  landholders  have,  if  you  please,  all  that  the 
possession  of  the  land  would  give  them  in  the 
absence  of  the  rest  of  the  community.  But  rent, 
the  creation  of  the  whole  community,  necessarily 
belongs  to  the  whole  community."  ^ 

As  is  well  known,  where  George  wholly  parts 
company  with  Mill  is  in  his  denial  to  present  holders 
of  land  of  a  right  to  compensation  for  this  virtual 
appropriation  by  the  State  of  their  property.  The 
statement  of  the  manner  in  which  George  attempts 
to  justify  this  spoliation  we  shall,  however,  postpone, 
until  we  come  to  the  criticism  of  the  general  prem- 
ises upon  which  Mill  and  George  base  their  systems. 

A  considerable  portion  of  George's  work  is  taken 
up  in  describing  the  evils  consequent  upon  the  pres- 

^  Idem. 

2  Progress  and  Poverty,  Book  VII,  Chapter  m. 


166  SOCIAL  JUSTICE 

ent  landlord  regime.  The  extreme  position  is  taken 
that  in  an  advancing  civilization  the  inevitable 
tendency  is  for  rent,  not  only  to  absorb  all  the  in- 
crease in  wealth  which  is  the  outcome  of  improved 
means  of  production  and  transportation,  but  to  draw 
to  itself  more  than  this.  Hence,  says  George,  so 
long  as  individual  ownership  of  land  is  permitted 
to  continue,  not  only  can  the  laboring  man  hope 
for  no  increase  in  his  wages,  but  he  must  expect 
that  his  condition  will  become  steadily  worse  :  "  Rent 
swallows  up  the  whole  gain,  and  pauperism  accom- 
panies progress."  "  The  reason  why,  in  spite  of  the 
increase  of  productive  power,  wages  constantly  tend 
to  a  minimum  which  will  give  but  a  bare  living,  is 
that,  with  increase  in  productive  power,  rent  tends 
to  even  greater  increase,  thus  producing  a  constant 
tendency  to  the  forcing  down  of  wages."  ^ 

1  Progress  and  Poverty,  Book  V,  Chapter  II.  Other  statements 
showing  the  extreme  position  of  George  upon  this  point  are  the 
following:  — 

"The  value  of  land  depending  wholly  upon  the  power  which  its 
ownership  gives  of  appropriating  wealth  created  by  labor,  the  increase 
of  land  values  is  always  at  the  expense  of  the  value  of  labor.  And, 
hence,  that  the  increase  of  productive  power  does  not  inci'ease  wages, 
is  because  it  does  not  increase  the  value  of  land.  Rent  swallows  up 
the  wliole  gain  and  pauperism  accompanies  progress."  Book  III, 
Chapter  VIII. 

"  The  effect  of  increasing  population  upon  the  distribution  of 
wealth  is  to  increase  rent,  and  consequently  to  diminish  the  pro- 
portion of  the  produce  which  goes  to  capital  and  labor,  in  two  ways : 
First,  by  lowering  the  margin  of  cultivation.  Second,  by  bringing 
out  in  land  special  capabilities  otherwise  latent,  and  by  attaching 
special  capabilities  to  particular  lands."     Book  IV,  Chapter  II. 

"  Wealth  in  all  its  forms  being  the  product  of  labor  applied  to 
land  or  the  products  of  land,  any  increase  in  the  power  of  labor, 
the  demand  for  wealth  being  unsatisfied,  will  be  utilized  in  procuring 


THE   LABOR   THEORY  167 

The  utter  misconception  both  of  economic  facts 
and  economic  laws  which  underlies  the  argument  by 
which  George  reaches  this  conclusion  must  be  left  to 
the  economists  to  point  out.  To  the  economists  must 
also  be  left  the  consideration  of  what  would  be  the 
probable  effects  of  the  imposition  of  such  a  single 
tax  as  that  advocated. 

Alfred  Russell  Wallace  is  another  prominent  advo- 
cate of  the  expediency  and  justice  of  land  nationaliza- 
tion.^ Like  George,  Wallace  finds  in  rent  the  cause 
of  almost  all  economic  evils;  but,  unlike  George, 
would  have  the  State  assume  direct  ownership  of 
land,  and  would  compensate  the  former  owner  either 
by  the  payment  of  a  lump  sum,  or,  preferably,  by  an 
annuity  to  him  and  to  "  any  heir  or  heirs  of  the  land- 
owner who  may  be  living  at  the  passing  of  the  act, 
or  who  may  be  born  at  any  time  before  the  decease 
of  the  said  owner."  "  This,"  continues  Wallace, 
"  would  insure  to  the  owner  himself,  and  to  all  per- 
sons in  whom  he  could  possibly  have  any  present 
interest,  the  same  net  income  from  the  land  which 
they  enjoyed  before  the  passing  of  the  act."  ^ 

Finally,  conspicuous  among  those  who  have  in 
their  writings  given  support  to  the  theory  that  land 

more  wealth,  and  thus  increase  the  demand  for  land."  Book  IV, 
Chapter  III. 

"  All  that  I  wish  to  make  clear  is  that,  without  any  increase  in 
population,  the  progress  of  invention  constantly  tends  to  give  a  larger 
proportion  of  the  produce  to  the  owners  of  land,  and  in  a  smaller  and 
smaller  proportion  to  labor  and  capital."     Book  IV,  Chapter  TIT. 

^  See  his  work  entitled,  Land  Nationalization :  Its  Necessity  and  its 
Aims,  first  published  in  1882. 

^  Op.  cit.,  8d  edition,  p.  199. 


168  SOCIAL  JUSTICE 

may  not  justly  be  held  in  private  ownership  is  Her- 
bert Spencer.  The  part  which  Spencer  has  played 
in  this  controversy  is  not,  however,  an  easy  one  to 
describe.  The  reason  for  this  is  that,  though  he  is 
sufficiently  explicit  in  his  first  published  work  that 
private  property  in  land  is  an  injustice  to  the  land- 
less, he  has  subsequently  declared  his  abandonment 
of  such  position.  At  the  same  time,  however,  he 
has  continued  to  affirm  the  premises  upon  which  his 
first  conclusion  was  founded,  and  has  not  indicated, 
at  least  in  any  satisfactory  way,  how  it  is  that  from 
them  he  is  now  able  to  reach  a  different  result.  In 
his  book,  A  Perplexed  Philosopher,  Henry  George 
has  subjected  the  various  utterances  of  Mr.  Spencer 
on  the  land  question  to  a  merciless  review.  While 
one  cannot,  of  course,  give  the  slightest  consideration 
to  the  charges  made  therein  by  George  that  the 
change  in  Spencer's  views  has  been  due  to  his  having 
"  tasted  the  sweets  of  London  society  "  and  become 
the  friend  of  "  Sir  John  and  his  Grace,"  one  cannot 
escape  the  conviction  that  Spencer  has,  in  the  course 
which  he  has  pursued  and  the  explanations  which  he 
has  offered,  exhibited  neither  candor  nor  consistency. 
Spencer's  first  book.  Social  Statics,  was  published 
in  1850.  After  deducing  his  well-known  funda- 
mental principle  that  "  every  man  may  claim  the 
fullest  liberty  to  exercise  his  faculties  compatible 
with  the  possession  of  like  liberty  by  every  other 
man,"  he  there  proceeds  to  determine  the  concrete 
rights  which  logically  follow.  In  Chapter  IX  he 
examines  "  The  Right  to  the  Use  of  the  Earth,"  and 


THE   LABOR   THEORY  169 

in  Chapter  X,  "  The  Right  of  Property."  "  Given," 
he  says,  "  a  race  of  beings  having  Hke  claims  to 
pursue  the  objects  of  their  desires  —  given  a  world 
adapted  to  the  gratification  of  those  desires  —  a 
world  into  which  such  beings  are  similarly  born, 
and  it  unavoidably  follows  that  they  have  equal 
rights  to  this  world.  .  .  .  Equity,  therefore,  does 
not  permit  property  in  land."  In  its  origin,  he  goes 
on  to  say,  private  property  in  land  was  the  outcome 
of  violence,  fraud,  and  force,  and  asks  :  "  Could  valid 
claims  be  thus  constituted  ?  Hardly.  And  if  not, 
what  becomes  of  the  pretensions  of  all  subsequent 
holders  of  estates  so  obtained  ?  Does  sale  or  bequest 
generate  a  right  where  it  did  not  previously  exist  ? 
Would  the  original  claimants  be  non-suited  at  the 
bar  of  reason,  because  the  thing  stolen  from  them 
had  changed  hands  ?  Certainly  not.  And  if  one 
act  of  transfer  can  give  no  title,  can  many  ?  No ; 
though  nothing  be  multiplied  forever,  it  will  not 
produce  one.  .  .  . 

" '  But  time,'  say  some,  '  is  a  great  legalizer.  Im- 
memorial possession  must  be  taken  to  constitute  a 
legitimate  claim.  That  which  has  been  held  from 
age  to  age  as  private  property,  and  has  been  bought 
and  sold  as  such,  must  now  be  considered  as  irrevoca- 
bly belonging  to  individuals.' "  To  which  Spencer 
replies,  "Whether  it  may  be  expedient  to  admit 
claims  of  a  certain  standing,  is  not  the  point.  We 
have  here  nothing  to  do  with  considerations  of  con- 
ventional privilege  or  legislative  convenience.  We 
have  simply  to  inquire  what  is  the  verdict  given  by 


170  SOCIAL  JUSTICE 

pure  equity  in  the  matter.  And  this  verdict  enjoins 
a  protest  against  every  existing  pretension  to  the 
individual  possession  of  the  soil ;  and  dictates  the 
assertion,  that  the  right  of  mankind  at  large  to 
the  earth's  surface  is  still  valid ;  all  deeds,  customs, 
and  laws  notwithstanding.  Not  only  have  present 
land  tenures  an  indefensible  origin,  but  it  is  impossi- 
ble to  discover  any  mode  in  which  land  can  become 
private  property." 

Finally,  in  closing  this  chapter,  Spencer  says : 
"  No  doubt  great  difficulties  must  attend  the  resump- 
tion, by  mankind  at  large,  of  their  rights  to  the  soil. 
The  question  of  compensation  to  existing  proprietors 
is  a  complicated  one  —  one  that  perhaps  cannot  be 
settled  in  strictly  equitable  manner.  Had  we  to 
deal  with  the  parties  who  originally  robbed  the 
human  race  of  its  heritage,  we  might  make  short 
work  of  the  matter.  But,  unfortunately,  most  of 
our  present  landowners  are  men  who  have,  either 
mediately  or  immediately  —  either  by  their  own  acts, 
or  by  the  acts  of  their  ancestors  —  given  for  their 
estates  equivalents  of  honestly  earned  wealth,  be- 
lieving that  they  were  investing  their  savings  in 
legitimate  manner.  To  justly  estimate  and  legiti- 
mate the  claims  of  such  is  one  of  the  most  intricate 
problems  society  will  one  day  have  to  solve.  But 
with  this  perplexity  and  our  extrication  from  it 
abstract  morality  has  no  concern.  Men,  having  got 
themselves  into  the  dilemma  by  disobedience  to  the 
law,  must  get  out  of  it  as  well  as  they  can,  and  with 
as  little  injury  to  the  landed  classes  as  may  be." 


THE   LABOR   THEORY  171 

George  gains  from  this  last  quoted  paragraph  the 
idea  that,  by  the  complexity  of  the  question  of  com- 
pensation spoken  of  by  Spencer,  reference  is  had  to 
the  difficulty  of  distinguishing  between  the  natural 
values  of  lands,  for  which  no  compensation  need  be 
paid,  and  the  improvements  thereon,  for  which  a 
recompense  should  be  given.  This,  however,  is 
certainly  not  what  Spencer  says,  nor,  as  we  believe, 
what  he  intended  to  say.  To  our  mind,  the  meaning 
is  that,  should  society  assume  possession  of  the  land, 
a  certain  inequity  would  necessarily  be  committed, 
inasmuch  as  the  present  landowners  have  in  most 
cases  "  given  for  their  estates  equivalents  of  honestly 
earned  wealth,  believing  that  they  were  investing 
their  savings  in  a  legitimate  manner,"  but  that  this 
inequity  would  be  less  than  that  of  permitting  a  con- 
tinuance of  private  landlordism. 

In  his  Chapter  X,  entitled  "  The  Right  of  Property 
in  Land,"  Spencer  accepts  the  labor  theory,  but  criti- 
cises the  view  of  Locke  so  far  as  private  ownership 
of  the  soil  is  justified.  Granting  to  society  an  inal- 
ienable right  to  the  soil,  he  finds  the  Lockian  theory 
of  property  irreproachable.  The  individual  may 
have  a  just  right  to  all  that  he  has  produced,  but 
for  the  use  of  the  soil  he  must  pay  a  rent  to  society. 

Between  1850  and  1882  Spencer  added  nothing  to 
his  views  on  the  land  question.  In  this  latter  year, 
however,  he  published  his  volume  on  Political  Insti- 
tutions. In  this  work,  in  his  chapter  on  "  Property," 
he  says  nothing,  however,  that  would  indicate  any 
essential  change   from   his  earlier  expressed  views. 


172  SOCIAL  JUSTICE 

But  in  1883,  in  a  letter  called  forth  by  an  article  in 
the  St.  James's  Gazette,  he  calls  attention  to  the  fact 
that  he  wishes  his  views  upon  the  question  of  land 
nationalization  to  be  taken  as  tentative,  and  that,  in 
fact,  he  had  intended  to  express  them  as  such  in  his 
Political  Institutions.  "  The  writer  of  the  article  in 
the  St.  James's  Gazette,'^  he  says,  "  does  not  represent 
the  facts  correctly  when  he  says  that  the  view  con- 
cerning the  ownership  of  land  in  Social  Statics  is 
again  expounded  in  Political  Institutions,  'not  so 
fully,  but  with  as  much  confidence  as  ever.'  In  this 
last  work  I  have  said  that  '  though  industrialism  has 
thus  far  tended  to  individualize  possession  of  land, 
while  individualizing  all  other  possession,  it  may  he 
doubted  whether  the  final  stage  is  at  present  reached.' 
Further  on  I  have  said  that  'at  a  stage  still  more 
advanced,  it  7nay  he  that  private  ownership  of  land 
will  disappear,"  and  that  'it  seems  possible  that 
primitive  ownership  of  land  by  the  community  .  .  . 
will  be  revived,'  and  yet  again  I  have  said  that  'per- 
haps the  right  of  the  community  to  the  land,  thus 
tacitly  asserted,  will,  in  time  to  come,  be  overtly 
asserted.'  Now  it  seems  to  me  that  the  words  I  have 
italicized  imply  no  great  '  confidence.'  Contrariwise, 
I  think  they  shoAV  quite  clearly  that  the  opinion  con- 
veyed is  a  tentative  one."  To  which  George  very 
properly  replies :  "  The  passages  Mr.  Spencer  quotes 
no  more  modify  the  view  of  land  ownership  set  forth 
in  Social  Statics  than  Lord  Lytton's  Coming  Race 
controverts  Adam  Smith's  Wealth  of  Nations.  In 
Social  Statics  Mr.  Spencer  declares  what  ought  to  be 


THE   LABOR    THEORY  173 

done ;  in  the  passages  he  quotes  from  Political  Insti- 
tutions he  is  prognosticating  as  to  what  is  likely  will 
be  done."  ^ 

In  1889,  in  a  letter  to  the  Times,  Spencer  asserts 
that  Social  Statics  was  intended  to  be  a  system  of 
political  ethics  —  "absolute  political  ethics,  or  that 
which  ought  to  be,  as  distinguished  from  relative 
political  ethics,  or  that  which  is  at  present  the  near- 
est practical  approach  to  it."  All  that  was  then 
said,  he  declares,  was  "  said  in  the  belief  that  the 
questions  raised  were  not  likely  to  come  to  the  front 
in  our  time  or  for  many  generations."  And  he  closes 
by  saying  that  "  nationalization  of  the  land  effected 
after  compensation  for  the  artificial  value  given  by 
cultivation,  amounting  to  the  greater  part  of  its 
value,  would  entail  in  the  shape  of  interest  on  the 
required  purchase  money,  as  great  a  sum  as  is  now 
paid  in  rent,  and  indeed  a  greater,  considering  the 
respective  rates  of  interest  on  landed  property  and 
other  property.  Add  to  which  there  is  no  reason 
to  think  that  the  substituted  form  of  administration 
would  be  better  than  the  existing  form  of  administra- 
tion. The  belief  that  land  would  be  better  managed 
by  public  officials  than  it  is  by  private  owners  is  a 
very  wild  belief.  What  the  remote  future  may  bring 
forth  there  is  no  saying ;  but  with  a  humanity  any- 

^  A  Perplexed  Philosopher,  p.  82.  For  the  inextricable  contradic- 
tions into  which  Mr.  Spencer  is  led  in  an  attempt  to  declare  that  for 
a  number  of  years  he  had  been  doing  all  he  could  to  stop  the  circula- 
tion of  his  Social  Statics,  when  in  fact  all  the  time  the  book  was  being 
published  and  sold  in  America,  with  his  authority,  see  idem,  pp.  83, 
85,  108-112. 


174  SOCIAL   JUSTICE 

tiling  like  that  which  we  now  know,  the  implied 
reorganization  would  be  disastrous." 

In  other  words,  Spencer  declares  that  the  realiza- 
tion of  what  has  been  discovered  to  be  absolutely  just 
is  by  no  means  to  be  attempted.  As  a  striking  com- 
mentary upon  such  a  position,  George  quotes  Spen- 
cer's own  words,  where  in  his  Social  Statics  he  says : 
"  Not  as  adventitious,  therefore,  will  the  wise  man 
regard  the  faith  that  is  in  him  —  not  as  something 
which  may  be  slighted,  and  made  subordinate  to 
calculations  of  policy,  but  as  a  supreme  authority  to 
which  all  his  actions  should  bend.  .  .  .  And  thus, 
in  teaching  a  uniform,  unquestioning  obedience,  does 
an  entirely  abstract  philosophy  become  one  with  all 
true  religion.  Fidelity  to  conscience  —  this  is  the 
essential  precept  inculcated  by  both.  No  hesitation, 
no  faltering  about  probable  results,  but  an  implicit 
submission  to  what  is  believed  to  be  the  law  laid 
down  to  us.  .  .  .  We  are  to  search  out  with  a  gen- 
uine humility  the  rules  ordained  for  us  —  are  to  do 
unfalteringly,  without  speculating  as  to  consequences, 
whatever  these  require ;  and  we  are  to  do  this  in  the 
belief  that  then,  when  there  is  a  perfect  sincerity, — 
when  each  man  is  true  to  himself  —  when  every  one 
strives  to  realize  what  he  thinks  the  highest  recti- 
tude,—  then  must  all  things  prosper." 

The  latest  views  of  Spencer  are  to  be  found  in  his 
Justice,  published  in  1892  as  Part  IV  of  his  Princi- 
ples of  Ethics.  Chapter  XI  of  this  work  is  entitled, 
"  The  Rights  to  the  Uses  of  Natural  Media."  Here 
he  repeats  that  "  the  earth's  surface  cannot  be  denied 


THE   LABOR   THEORY  175 

to  any  one  absolutely  without  rendering  life-sustain- 
ing activities  impracticable.  .  .  .  Hence  it  appears 
to  be  a  corollary  from  the  law  of  equal  freedom,  in- 
terpreted with  strictness,  that  the  earth's  surface  may 
not  be  appropriated  absolutely  by  individuals,  but 
may  be  occupied  by  them  only  in  such  manner  as 
recognizes  ultimate  ownership  by  other  men;  that  is, 
society  at  large." 

In  the  beginning,  says  Spencer,  communism  in 
land  actually  existed.  After  quoting  several  alleged 
facts  regarding  the  Russian  mir,  he  declares,  "  Such 
facts,  and  numerous  other  facts,  put  beyond  question 
the  conclusion  that  before  the  progress  of  social 
organization  changed  the  relations  of  individuals  to 
the  soil,  that  relation  was  one  of  joint  ownership,  and 
not  of  individual  ownership."  But  conquest  and 
force  has  everywhere  suspended  this  communal  pro- 
prietorship by  individual  ownership ;  but,  as  Spencer 
says,  the  original  theory  still  survives  in  the  legal 
idea  that  ultimately  the  title  to  all  land  is  vested  in 
the  State.  And,  he  adds,  "  It  remains  only  to  point 
out  that  the  political  changes  which  have  slowly 
replaced  the  supreme  power  of  the  monarch  by  the 
supreme  power  of  the  people,  have  by  implication 
replaced  the  monarch's  supreme  ownership  of  the 
land  by  the  people's  supreme  ownership  of  the 
land."^  If  this  be  so,  then, — though  Spencer  does 
not  so  explicitly  declare,  —  even  from  the  legal  stand- 

^  We  say  "  alleged,'*  for  as  we  shall  see  a  little  further  on,  the  latest 
opinion  of  historians  is  that  the  mir  does  not  and  never  has  illustrated 
a  true  type  of  land  communism. 


176  SOCIAL   JUSTICE 

point,  no  objection  can  be  raised  to  the  community's 
reasserting  its  ethical  right  to  the  actual  ownership 
and  use  of  the  soil  now  engrossed  by  individuals. 

George  seems  to  think  that  Spencer  means  to  infer 
by  the  above  argument  that  in  the  recognition  of  the 
State's  paramount  title  to  land  as  now  shown  in  the 
exercise  of  its  police  power  and  power  of  eminent 
domain,  the  right  of  all  individuals  to  that  free 
access  to  the  use  of  the  soil  which  the  law  of 
equal  freedom  requires  is  practically  secured  to 
them.  Spencer's  meaning  is  not  plain,  but  to  us  it 
rather  appears  that  the  meaning  intended  to  be  con- 
veyed is  as  we  have  stated  it.  As  a  matter  of  fact, 
of  course,  the  theory  of  the  English  law  of  which 
Spencer  speaks  is  not  a  survival  of  the  primitive  idea 
of  common  ownership,  but  an  inheritance  from  the 
feudal  system.  And,  moreover,  the  State  does  not 
exercise  any  more  absolute  a  control  over  land  under 
its  right  of  eminent  domain  than  it  does  over  other 
forms  of  property  under  its  "  police  powers."  In 
truth,  indeed,  the  interference  with  private  property 
rights  under  the  latter  power  is,  in  one  respect  at 
least,  more  serious  than  that  exercised  under  the  for- 
mer ;  for  when  land  has  been  taken  from  its  owners 
by  a  proceeding  instituted  under  the  right  of  eminent 
domain  compensation  is  ordinarily  given ;  whereas, 
when  property  values  are  destroyed  by  the  police 
power  no  indemnification  is  awarded. 

In  Appendix  B  to  his  Justice,  after  giving  figures 
to  show  the  aggregate  amounts  that  the  landless 
have  received  in  the  past  from  the  landlords  in  the 


THE   LABOR    THEORY  177 

form  of  poor-relief, — but  not  mentioning  or  appar- 
ently remembering  the  income  that  the  landlords 
have  in  the  past  secured  from  their  holdings,  —  Spen- 
cer says:  "When  in  Social  Statics,  published  in  1850, 
I  drew  from  the  law  of  equal  freedom  the  corollary 
that  the  land  could  not  equitably  be  alienated  from 
the  community,  and  argued  that  after  compensating 
its  existing  holders  it  should  be  reappropriated  by 
the  community,  I  overlooked  the  foregoing  consider- 
ations. Moreover,  I  did  not  clearly  see  what  would 
be  implied  by  the  giving  of  compensation  for  all  that 
value  which  the  labor  of  ages  had  given  to  the  land. 
While,  as  shown  in  Chapter  XI,  I  adhere  to  the  infer- 
ence originally  drawn,  that  the  aggregate  of  men 
forming  the  community  are  the  supreme  owners  of 
the  land,  —  an  inference  harmonizing  with  legal  doc- 
trine and  daily  acted  upon  in  legislation,  —  a  fuller 
consideration  of  the  matter  has  led  me  to  the  conclu- 
sion that  individual  ownership  subject  to  State-sover- 
eignty should  be  maintained." 

In  effect,  then,  we  see  that,  though  Spencer  has 
held  varying  views  regarding  the  expediency  and 
even  the  justice  of  resorting  again  to  communal 
ownership  of  land,  he  has  held  consistently  to  the 
idea  that  land  by  its  very  nature  is  not  intended  for 
private  ownership,  and  to  the  opinion  that,  as  an 
abstract  principle  of  right,  —  that  is,  divorced  from 
all  questions  of  present  feasibility,  —  engrossment  of 
the  soil  by  individuals  is  an  injustice  to  those  who, 
by  such  engrossment,  are  prevented  from  exercising 
that  right  to  the  free  use  of  the  land  which  they  are 


178  SOCIAL  JUSTICE 

declared  to  have  in  common  with  their  fellows. 
Upon  this  point,  Mill,  George,  Wallace,  and  Spencer 
agree. 

Criticism.  —  In  undertaking  a  criticism  of  the 
theories  of  Mill,  George,  Wallace,  and  Spencer,  it 
would  be  a  comparatively  easy  task  to  show  that 
they  have  both  exaggerated  the  evil  effects  of  private 
landlordship,  and  ignored  its  beneficent  influences. 
Furthermore,  it  would  not  be  a  serious  task  to  point 
out  the  practical  difficulties  that  necessarily  lie  in 
the  way  either  of  applying  and  collecting  a  "  single 
tax,"  or  of  establishing  and  maintaining  a  general 
State  landlordship.  Criticism  of  this  sort  belongs, 
however,  to  the  economic  specialist,  and  in  fact 
economists  have  abundantly  demonstrated  the  eco- 
nomic fallacies  involved  in  the  system  we  have  been 
discussing.^  Our  examination  shall  therefore  be 
limited  to  the  questions  of  justice  involved. 

The  refutation  of  the  labor  theory  of  property 
which  has  gone  before  abolishes  the  main  distinction 
which  is  usually  made  between  the  right  to  land  and 
to  other  forms  of  wealth ;  for,  even  if  it  be  admitted 
that  land  is  a  free  gift  of  nature,  while  other  goods 
are  wholly  the  result  of  human  labor  which,  how- 
ever, as  we  shall  see,  is  not  admitted,  still,  inasmuch 
as  it  has  been  shown  that  labor  cannot  furnish  the 
sole  justification  for  private  property,  there  is  still 
left  open  the  possibility  that  the   true   justification 

1  See  especially  Walker,  Land  and  its  Rent,  and  a  series  of  valuable 
papers  published  in  No.  XXVII  of  the  Journal  of  the  American  Social 
Science  Association. 


THE   LABOR   THEORY  179 

will  be  siich  as  to  warrant  individual  ownership  of 
land  as  well  as  of  manufactured  commodities. 

As  a  matter  of  fact,  the  distinctions  which  Mill, 
Spencer,  and  George  make  between  land  and  other 
goods  are  not  valid.  In  the  first  place,  land  is  not 
unique  in  being  strictly  limited  in  amount.  Many 
other  articles  of  value  are  not  susceptible  of  indefinite 
increase.  In  truth,  at  any  one  time,  the  amount 
of  any  commodity  in  existence  and  available  for 
human  use  is  definitely  determined.  Many  goods 
are,  indeed,  of  such  a  character  that  their  amount 
may  easily  be  added  to  by  the  energy  of  man,  but 
as  to  all  that  class  which  come  under  the  law  of 
"  diminishing  returns,"  this  is  not  so ;  and  as  to 
many  of  these  last,  an  attempt  to  increase  to  any 
considerable  degree  their  total  amount  would  prove 
a  more  difficult  task  than  would  be  the  extension  of 
available  arable  land  to-day. 

But  even  were  this  not  so,  the  mere  fact  that  free 
sale  and  exchange  of  land  everywhere  exists  among 
civilized  peoples  is  sufficient  to  destroy  any  argu- 
ment based  upon  the  alleged  monopolistic  character 
of  land  ownership.  So  long  as  men  are  free  to 
exchange  manufactured  commodities  for  land,  and 
there  is  no  concerted  attempt  on  the  part  of  land- 
owners to  keep  their  estates  out  of  the  market, 
there  is  presented  to  every  individual  practically  the 
same  opportunity  for  becoming  a  landowner  as  there 
is  for  his  becoming  a  capitalist  of  any  other  sort.^ 

^  As  Edward  Atkinson  has  somewhere  said,  it  is  now  more  easy  for 
the  ordinary  individual  to  obtain  land,  than  it  formerly  was  among 
savages  by  occupation. 


180  SOCIAL   JUSTICE 

It  may  be  replied,  however,  that  if  a  given  indi- 
vidual have  no  inalienable  right   to   some   piece  of 
land,  it  is  theoretically  possible  for   the    society  of 
which  he  is  a  member  to  refuse  him  a  place  upon 
which  to  sleep  or  even  stand.       Therefore,  it   may 
be  argued,  if  a  man  have  a  right  to  life  at  all,  he 
must  have  a  right  to  the  possession,  or  at  least  to 
the    enjoyment   in    common   with   others,   of   some 
definite  piece  of  ground.     To  this  it  may  be  replied 
that,  in  the  first  place,  no  individual  has  an  abstract, 
that  is  to  say,  an  absolute,  right  to  life.     This  we 
shall   show   in   another   chapter.^       In    the    second 
place,  it  may  be  answered,  that  even  were  the  right 
to  life  recognized,  this  would  not  place  land  upon  a 
basis  distinct  from  all  other  kinds  of  wealth.     Place 
a   naked   man   upon  an  unimproved   piece   of   land 
anywhere   except  in  the  warmer   latitudes,  and   he 
would  soon  perish,  unless  given,  or  allowed  to   ex- 
change the  products  of  his  land  for,  articles  of  cloth- 
ing, materials  for  building,  implements  of  husbandry, 
etc.     If,  then,  we  are  going  to  recognize  an  absolute 
right  to  life,  we  must,  according   to   circumstances, 
group  other  commodities  with  land  as  not  ethically 
susceptible  of  general  private  ownership.     In  truth, 
as  Professor  J.  B.  Clark   has   said,  if   the   landless 
man  has  any  case  against  the  world,  it  is  that  he 
has  a  lack   of   wealth,  —  of   accumulated   value, — 
not  that  he  has  no  land. 

In  distinguishing  between  products  of  the  soil  and 
other  forms  of  economic  goods,  George  repeats  the 
1  Post,  Chapter  X. 


THE   LABOR   THEORY  181 

error  of  the  Physiocrats  that  nature  cooperates  only 
in  certain  forms  of  production,  whereas  the  truth  is 
that  it  cooperates  in  all.  In  one  place  George  him- 
self seems  to  recognize  this.  Thus  he  says :  "  When 
we  speak  of  labor  creating  wealth,  we  speak  meta- 
phorically. Man  creates  nothing.  The  whole  human 
race,  were  they  to  labor  forever,  could  not  create  the 
tiniest  mote  that  floats  in  a  sunbeam  —  could  not 
make  this  rolling  sphere  one  atom  heavier  or  one 
atom  lighter.  In  producing  wealth,  labor,  with  the 
aid  of  natural  forces,  but  works  up,  into  the  forms 
desii'ed,  preexisting  matter."  But  the  conclusion 
that  he  draws  from  this  is,  not  that,  labor  furnish- 
ing the  only  valid  title  to  ownership,  no  man  can 
claim  right  to  the  entire  product  of  his  labor,  but 
that,  "  to  produce  wealth,  [labor]  must,  therefore, 
have  access  to  this  matter  and  to  these  forces  — 
that  is  to  say,  land."  ^ 

Mill,  in  his  Political  Economy,  sees  very  plainly 
the  fact  that  nature  participates  in  every  form  of 
production,  and  from  it  draws  a  conclusion  that  is 
absolutely  destructive  both  to  the  labor  theory  of 
property  in  general,  and  to  the  land  theory  of  George 
and  Spencer  in  particular.  He  says :  "  The  part 
which  nature  has  in  any  work  of  man  is  indefinite 
and  incommensurable.  It  is  impossible  to  decide 
that  in  any  one  thing  nature  does  more  than  in 
any  other.  One  cannot  even  say  that  labor  does 
less.  Less  labor  may  be  required,  but  if  that  which 
is  required  is  absolutely  indispensable,  the  result  is 

1  Progress  and  Poverty,  Book  V,  Chapter  I. 


182  SOCIAL  JUSTICE 

just  as  much  the  product  of  labor,  as  of  nature. 
When  two  conditions  are  equally  necessary  for  pro- 
ducing the  effect  at  all,  it  is  unmeaning  to  say  that 
so  much  of  it  is  produced  by  one  and  so  much  by 
the  other;  it  is  like  attempting  to  decide  which 
half  of  a  pair  of  scissors  has  most  to  do  in  the 
act  of  cutting ;  or  which  of  the  factors,  five  or  six, 
contributes  most  to  the  production  of  thirty."  ^ 

There  is  one  result,  moreover,  which  logically  fol- 
lows from  George's  premises,  which  is  not  always 
sufficiently  emphasized,  and  which,  if  emphasized, 
would  go  far  toward  depriving  his  scheme  of  the  pop- 
ularity it  enjoys.  This  necessary  result  is  that  the 
exclusive  appropriation  of  a  given  territory  by  any 
particular  community  cannot  be  justified.  For  if,  as 
George  says,  "  Natural  justice  can  recognize  no  right 
in  one  to  the  possession  and  enjoyment  of  land  that 
is  not  equally  the  right  of  all,"  then  all  men,  as  men, 
and  not  simply  as  members  of  a  particular  social  ag- 
gregate, are  entitled  to  participate  in  the  advantages 
which  its  possession  yields.  Huxley  has  put  into 
amusing  yet  truthful  form  the  effect  that  the  asser- 
tion of  this  fact  would  probably  have  upon  the  popu- 
larity of  George's  scheme.  Consider,  says  Huxley, 
the  effect  of  a  sober  and  truthful  statement  of  what 
"  the  orating  person  really  meant,  or,  according  to  his 
own  principles,  ought  to  mean,  say  of  such  a  speech 
as  this :  — 

" '  My  free  and  equal  fellow  countrymen,  there  is 
not  the  slightest  doubt  that  not  only  the  Duke  of 

1  Op.  cit.,  Book  I,  Chapter  I,  §  3. 


THE   LABOR   THEORY  183 

Westminster  and  the  Messrs.  Astor,  but  everybody 
who  holds  land  from  the  area  of  a  thousand  square 
miles  to  that  of  a  tablecloth,  and  who,  against  all 
equity,  denies  that  every  pauper  child  has  an  equal 
right  to  it,  is  a  robber.  [Loud  and  long-continued 
cheers ;  the  audience,  especially  the  paupers,  stand- 
ing up  and  waving  hats.]  But,  my  friends,  I  am 
also  bound  to  tell  you  that  neither  the  pauper  child, 
nor  Messrs.  Astor,  nor  the  Duke  of  Westminster, 
have  any  more  right  to  the  land  than  the  first  nigger 
you  may  meet,  or  the  Esquimaux  at  the  north  end  of 
this  great  continent,  or  the  Fuegians  at  the  south  end 
of  it.  Therefore,  before  you  use  your  strength  in 
claiming  your  rights,  and  take  the  land  away  from 
the  usurping  dukes  and  robbing  Astors,  you  must 
recollect  that  you  will  have  to  go  shares  in  the  prod- 
uce of  the  operation  with  the  four  hundred  and  odd 
millions  of  Chinamen,  the  one  hundred  and  fifty 
millions  who  inhabit  Hindoostan,  the  —  [loud  and 
long-continued  hisses ;  the  audience,  especially  the 
paupers,  standing  up  and  projecting  handy  movables 
at  the  orator].'"^ 

Besides  the  criticism  which  has  already  been  made 
of  George's  theories  regarding  land  ownership,  there 
are  several  minor  objections  which  may  be  made,  but 
which  scarcely  need  be  dwelt  upon  at  any  length. 
In  the  first  place,  if  strictly  applied,  his  system 
would  destroy  the  validity,  not  merely  of  present 
land  titles,  but  of  almost  all  other  forms  of  wealth. 
If  no  landlord  has  ever  in  the  past  obtained  a  valid 

^Methods  and  Results,  essay  on  "Natural  and  Political  Rights." 


18i  SOCIAL  JUSTICE 

title  to  his  land,  then,  when  he  has  exchanged  or  sold 
his  alleged  property  for  some  other  form  of  wealth, 
such  other  forms  could  not  rightfully  have  become 
his,  but  must,  in  equity,  have  continued  to  belong  to 
that  society  which  was  and  is  the  rightful  owner  of 
the  soil  for  which  it  was  exchanged.  But,  inas- 
much as  originally  almost  all  wealth  consisted  of 
land,  this  would  justify  the  confiscation  to  public  uses 
of  practically  all  wealth  of  a  permanent  character. 

In  the  second  place,  George  attempts  to  obtain 
support  for  his  theory  by  alleging  that,  as  an  histori- 
cal fact,  "  the  common  right  to  land  has  everywhere 
been  primarily  recognized,  and  private  ownership  has 
nowhere  grown  up  save  as  the  result  of  usurpation." 
And  he  continues,  "  The  primary  and  persistent  per- 
ceptions of  mankind  are  that  all  have  an  equal  right 
to  land,  and  the  opinion  that  private  property  in  land 
is  necessary  to  society  is  but  an  offspring  of  ignorance 
that  cannot  look  beyond  its  immediate  surroundings 
—  an  idea  of  comparatively  modern  growth,  —  as 
artificial  and  as  baseless  as  that  of  the  divine  right 
of  kings."  ^ 

The  authorities  upon  which  George  relies  as  to  the 
original  community  of  ownership  of  the  soil  among 
all  races,  so  far  as  known,  are  de  Laveleye  and 
Maine.  As  a  matter  of  fact,  however,  later  research 
has  shown  with  practical  conclusiveness  that  these 
writers  are  mistaken  upon  this  point,  or  at  least 
have  not  proved  it.^     The  refutation  of  the  idea  of 

1  Progress  and  Poverty,  Book  VII,  Chapter  TV. 
^  See  especially  de  Coulanges' essay,  entitled  The  Origin  of  Property 
in  Land,  and  Jeuks,  Law  and  Politics  in  the  Middle  Ages. 


THE   LABOR   THEORY  185 

an  original  community  of  land  ownership  deprives 
George's  theory  of  any  support  that  he  may  have 
sought  from  it,  but  it  does  not,  of  course,  play  any 
essential  part  in  a  vindication  of  the  rightfulness  of 
private  property  in  land ;  for,  as  George  himself 
says,  "  If  it  were  true  that  land  had  always  been 
treated  as  private  property,  that  would  not  prove  the 
justice  or  necessity  of  continuing  so  to  treat  it,  any 
more  than  the  universal  existence  of  slavery,  which 
might  once  have  been  safely  affirmed,  would  prove 
the  justice  and  necessity  of  making  property  of 
human  flesh  and  blood.  ..." 

From  our  standpoint,  not  so  important,  yet  quite 
valid,  is  the  objection  to  the  assertion  made  by 
George  that  his  proposed  smgle  tax  is  ideally  just 
upon  the  ground  that  it  apportions  itself  according  to 
benefits  received.  This  principle  has  been  generally 
repudiated  by  economists  as  a  just  basis  of  taxation. 
The  idea  is,  in  fact,  dependent  for  its  validity  upon 
the  individualistic  political  philosophy  of  the  eigh- 
teenth century,  according  to  which  the  State  is 
viewed  simply  as  an  agent  for  the  accomplishment 
of  individual  interests.  When,  however,  the  true 
conception  of  the  nature  of  the  State  and  of  its 
ends  is  obtained,  it  is  seen  that "  the  principle  of  con- 
tribution becomes  shifted  from  that  of  benefits  to 
that  of  ability,  of  faculty,  of  capacity.  Every  man 
now  must  support  the  State  to  the  full  extent,  if 
need  be,  of  his  ability  to  pay.  He  does  not  measure 
the  benefits  of  the  State  action  to  himself :  first, 
because  the  benefits   are  quantitatively   immeasura- 


186  SOCIAL  JUSTICE 

ble ;  and,  secondly,  because,  if  he  is  a  patriot,  he 
considers  not  the  welfare  of  himself,  but  of  the  com- 
munity at  large,  and  he  contributes  to  this  general 
welfare,  not  in  proportion  to  any  share  of  personal 
aggrandizement,  but  in  accordance  with  the  elevated 
ethical  conception  of  relative  ability."  ^ 

The  Right  to  Compensation.  —  As  has  already  been 
said,  George  differs  from  Mill  in  that  he  sees  no 
reason  in  equity  why,  if  society  should  seek  to  take 
to  itself  its  own,  the  present  holders  of  land  should 
be  compensated.  The  demonstration  which  we  have 
made  of  the  invalidity  of  a  distinction  between  land 
and  other  forms  of  wealth  as  to  the  rightfulness  of 
private  ownership  necessarily  carries  with  it  the 
refutation  of  this  view.  For  if  there  be  no  sufficient 
reason  for  distinguishing,  as  to  ethical  right  of 
ownership,  between  private  property  in  land  and 
property  in  other  forms  of  wealth,  there  cannot  be 
any  just  ground  for  confiscating  the  property  of 
landowners  as  such,  while  the  owners  of  other  forms 
of  wealth  are  unmolested.  At  the  same  time,  how- 
ever, it  is  comparatively  easy  to  show  that,  even 
were  George's  theories  in  other  respects  true,  they 
would  not  justify  the  reasoning  which  he  has 
brought  forward  to  support  the  claim  that  no  com- 
pensation should  be  given  to  the  landlords.  The 
vital  objection  to  the  spoliation  which  George  pro- 

*  Seligman,  in  Journal  of  the  American  Social  Science  Association, 
No.  XXVII.  For  an  adtiiirable  discussion  of  the  question  of  abstract 
justice  in  the  apportionment  of  taxes,  see  the  articles  "  Taxation  " 
and  "  Graduated  Taxation,"  by  Professor  Selignian,  in  Palgrave's  Dic- 
tionary of  Political  Economy.     See  also  Seligman's  Essays  in  Taxation. 


THE   LABOR   THEORY  187 

poses  lies  of  course  in  the  fact  that,  even  if  private 
property  in  land  be  unjust,  the  present  owners  have, 
in  practically  all  cases,  exchanged  for  their  holdings 
values  honestly  acquired  and  owned,  and  have  done  so 
at  a  time  when  both  law  and  social  opinion  have  jus- 
tified the  private  ownership  of  land,  and  guaranteed 
to  it  their  protection.-  How,  then,  the  question  neces- 
sarily arises,  can  such  owners  justly  be  deprived  of 
their  property  by  that  same  society  whose  law  and 
custom  justified  the  original  investment  ? 

George  answers  this  question  by  saying :  "  Why 
not  make  short  work  of  the  matter  anyhow  ?  For 
this  robbery  is  not  like  the  robbery  of  a  horse  or  a 
sum  of  money  that  ceases  with  the  act.  It  is  a 
fresh  and  continuous  robbery,  that  goes  on  every  day 
and  every  hour.  It  is  not  from  the  produce  of  the 
past  that  rent  is  drawn  ;  it  is  from  the  produce  of 
the  present.  It  is  a  toll  levied  upon  labor  constantly 
and  continuously.  Every  blow  of  the  hammer, 
every  stroke  of  the  pick,  every  thrust  of  the  shuttle, 
every  throb  of  the  steam-engine,  pays  it  tribute.  It 
levies  upon  the  earnings  of  men  who,  deep  under 
ground,  risk  their  lives,  and  of  those  who  over  white 
surges  hang  to  reeling  masts ;  it  claims  the  just 
reward  of  the  capitalist  and  the  fruits  of  the 
inventor's  patient  effort;  it  takes  little  children 
from  play  and  from  school,  and  compels  them  to 
work  before  their  bones  are  hard  or  their  muscles 
are  firm ;  it  robs  the  shivering  of  warmth ;  the 
hungry,  of  food ;  the  sick,  of  medicine ;  the  anxious, 
of  peace.     It  debases,  and  embrutes,  and  embitters. 


188  SOCIAL   JUSTICE 

It  crowds  families  of  eight  and  ten  into  a  single 
squalid  room ;  it  herds  like  swine  agricultural  gangs 
of  boys  and  girls ;  it  fills  the  gin  palace  and  groggery 
with  those  who  have  no  comfort  in  their  homes ;  it 
makes  lads  who  might  be  useful  men  candidates  for 
prisons  and  penitentiaries ;  it  fills  brothels  with  girls 
who  might  have  known  the  pure  joy  of  motherhood ; 
it  sends  greed  and  all  evil  passions  prowling  through 
society  as  a  hard  winter  drives  the  wolves  to  the 
abodes  of  men ;  it  darkens  faith  in  the  human  soul, 
and  across  the  reflection  of  a  just  and  merciful 
Creator  draws  the  veil  of  a  hard,  and  blind,  and 
cruel  fate  !  It  is  not  merely  a  robbery  in  the  past ; 
it  is  a  robbery  in  the  present  —  a  robbery  that 
deprives  of  their  birthright  the  infants  that  are  now 
coming  into  the  world.  Why  should  we  hesitate 
about  making  short  work  of  such  a  system?  Be- 
cause I  was  robbed  yesterday,  and  the  day  before, 
and  the  day  before  that,  is  it  any  reason  that  I 
should  suffer  myself  to  be  robbed  to-day  and  to- 
morrow ?  Any  reason  that  I  should  conclude  that 
the  robber  has  acquired  a  vested  right  to  rob  me  ?  "  ^ 
The  earnestness  and  eloquence  of  the  paragraphs 
that  have  been  quoted  go  far  toward  showing  the 
influence  which  Mr.  George's  work  has  had  among 
the  masses,  but  it  is  difficult  to  believe  that  it  was 
not  evident  to  a  man  of  George's  intellectual  ability 
that  the  argument  set  forth  was  absolutely  irrele- 
vant. For  if  all  that  he  says  be  true,  if  private 
ownership   in   land    be   a   continuing   robbery,   and 

1  Progress  and  Poverty,  Book  VII,  Chapter  III. 


THE    LABOR   THEORY  189 

attended  by  the  evils  he  describes,  nothing  is  proved 
that  destroys  the  equities  that  have  been  created  in 
the  past.  If,  as  he  says,  rent  is  drawn,  not  from  the 
past,  but  the  present,  cause  the  robbery  instantly  to 
cease,  but  let  this  not  be  a  warrant  for  exploiting 
those  who  have  invested  their  honestly  earned  wages 
in  landed  property. 

But,  says  George,  "  To  buy  up  individual  prop- 
erty rights  would  merely  be  to  give  the  landholders 
in  another  form  a  claim  of  the  same  kind  and  amount 
that  their  possession  of  land  now  gives  them ;  it 
would  be  to  raise  for  them  by  taxation  the  same 
proportion  of  the  earnings  of  labor  and  capital 
that  they  are  now  enabled  to  produce.  Their 
unjust  advantage  would  be  preserved,  and  the 
unjust  disadvantage  of  the  non-landholders  would 
be  continued."  ^ 

To  this  we  reply,  if  this  be  true,  then  the  existence 
of  a  capitalistic  class,  however  their  wealth  be  origi- 
nally obtained,  is  unjust ;  whereas,  as  we  have  already 
shown,  this  is  not  so.  In  fact,  George  himself,  though 
not  upon  proper  grounds,  defends  the  existence  of  an 
interest-securing  class. 

It  will  be  interesting  to  see  how  he  does  this.  "  If 
wealth,"  he  says,  '"'  consisted  but  of  the  inert  matter 
of  the  universe,  and  production  of  working  up  this 
inert  matter  into  different  shapes,  .  .  .  interest  would 
be  but  the  robbery  of  industry,  and  could  not  longer 
exist.  .  .  .  But  all  wealth  is  not  of  the  nature  of 
planes,  or  planks,  or  money,  which  has  no  reproduc- 

1  Op.  cit.,  Book  VII,  Chapter  HI. 


190  SOCIAL  JUSTICE 

tive  power,  nor  is  all  production  merely  the  turning 
into  other  forms  of  this  inert  matter  of  the  uni- 
verse. It  is  true  that  if  I  put  away  money,  it  will 
not  increase.  But  suppose,  instead,  I  put  away  wine. 
At  the  end  of  the  year  I  will  have  an  increased 
value,  for  the  wine  will  have  improved  in  quality. 
Or  supposing  that,  in  a  country  adapted  to  them,  I 
set  out  bees ;  at  the  end  of  the  year  I  will  have 
more  swarms  of  bees  and  the  honey  which  they 
have  made.  Or  supposing,  where  there  is  a  range, 
I  turn  out  sheep,  or  hogs,  or  cattle ;  at  the  end  of 
the  year  I  will,  upon  the  average,  also  have  an 
increase.  Now  what  gives  the  increase  in  these 
cases  is  something  which,  though  it  generally 
requires  labor  to  utilize  it,  is  yet  distinct  and  sep- 
arate from  labor — the  active  power  of  nature;  the 
principle  of  growth,  of  reproduction,  which  every- 
where characterizes  all  the  forms  of  life.  And  it 
seems  to  me  that  it  is  this  which  is  the  cause  of 
interest  or  the  increase  of  capital  over  and  above 
that  due  to  labor.  .  .  .  Now  the  interchangeability 
of  wealth  necessarily  involves  an  average  between  all 
the  species  of  wealth  of  any  special  advantage  which 
accrues  from  the  possession  of  any  particular  species, 
for  no  one  would  keep  capital  in  one  form  when  it 
could  be  changed  into  a  more  advantageous  form. 
.  .  .  And  so  in  any  circle  of  exchange  the  power 
of  increase  which  the  reproductive  or  vital  force  of 
nature  gives  to  some  species  of  capital  must  average 
with  all ;  and  he  who  lends,  or  uses  in  exchange, 
money,    or    planes,   or    bricks,    or    clothing,   is   not 


THE   LABOR   THEORY  191 

-deprived  of  the  power  to  obtain  an  increase,  any 
more  than  if  he  had  lent  or  put  to  a  reproductive 
use  so  much  capital  in  a  form  capable  of  increase. 
.  .  .  Thus  interest  springs  from  the  power  of 
increase  which  the  reproductive  forces  of  nature, 
and  in  effect  analogous  capacity  for  exchange,  give 
to  capital.  It  is  not  an  arbitrary,  but  a  natural 
thing ;  it  is  not  the  result  of  a  peculiar  social  organ- 
ization, but  of  laws  of  the  universe  which  underlie 
society.     It  is,  therefore,  just."  ^ 

As  we  have  already  seen,  the  true  reason  why 
interest  is  paid,  and  why  it  is  rightfully  paid,  is 
not,  as  George  thinks,  because  of  the  naturally 
fructifj'ing  characteristic  of  certain  forms  of  wealth, 
but  because  of  the  fact  that  an  immediate  advantage 
is  actually  worth  more  than  a  deferred  one. 

It  is  not  to  be  gathered  from  the  foregoing  that 
■confiscation  by  the  State  of  land  privately  owned 
•can  never  be  justified  save  when  compensation  is 
offered.  If  the  necessity  for  the  change  should  be 
shown  to  be  imperative,  and  yet  the  existing  condi- 
tions should  be  of  such  a  character  as  absolutely  to 
preclude  the  possibility  of  payment  of  indemnity  to 
the  landlords,  confiscation  would  be  justified  in  much 
the  same  way  that  a  private  house  may  justly  be 
demolished  in  order  to  prevent  the  spread  of  a 
conflagration,  or  the  value  of  any  private  property 

1  Op.  cit.,  Book  III,  Chapter  III.  As  Bohm-Bawerk  points  out, 
-George's  theory  resembles  Turgot's  "  Fructification  Theory,"  but 
differs  from  it  in  that  Turgot  places  the  source  of  interest  outside 
of  capital,  that  is,  in  rent-bearing  land,  while  George  seeks  it  out- 
ride the  sphere  of  capital  in  certain  naturally  fruitful  kinds  of  goods. 


192  SOCIAL   JUSTICE 

destroyed  by  the  exercise  of  the  State's  "police 
power." 

This,  however,  is  something  quite  different  from 
what  is  maintained  by  the  followers  of  George. 
They  justify  the  exploitation  of  the  landlord  upon 
a  theory  as  to  the  peculiar  character  of  land  which 
distinguishes  it  generically  from  all  other  forms  of 
wealth.  The  principle  which  we  have  just  stated 
recognizes  the  original  right  of  the  owners  of  the 
land,  but  supersedes  it  by  the  enforcement  of  a  higher 
right.  The  followers  of  George  deny  the  original 
equity  of  private  ownership  of  land,  and  thus  declare 
that  no  right  exists  for  the  violation  of  which  a  justi- 
fication is  needed. 

The  justice  of  the  appropriation  by  the  community 
of  only  the  future  unearned  increment  of  land,  as 
advocated,  for  example,  by  Mill,  depends  upon  prin- 
ciples already  stated.  If  this  appropriation  should 
be  so  made  that  the  actual  market  value  of  land 
would  not  be  affected,  no  special  justification  would 
be  needed.  Whether  or  not  the  step  should  be 
taken  would,  under  such  circumstances,  be  simply 
one  of  economic  expediency.  It  may  be  observed, 
however,  that  it  is  by  no  means  certain  that  there 
is  an  unearned,  that  is  a  socially  earned,  increment 
which  attaches  to  land  that  does  not  also  attach  to 
many  other  forms  of  wealth. 

The  whole  matter  is  summed  up,  however,  in  say- 
ing that  unless  land  can  be  shown  to  be  of  such  a 
character  that  for  its  private  ownership  there  must 
be  discovered  an  ethical  warrant  different  from  that 


THE  LABOR   THEORY  193 

which  is  needed  for  other  forms  of  property,  an 
interference  with  its  value  by  the  State,  present  or 
future,  can  be  defended  only  upon  the  same  grounds 
that  will  justify  a  like  interference  with  the  values 
of  other  forms  of  wealth. 


CHAPTER   VII 

OTHER   CANONS    OF    DISTRIBUTIVE   JUSTICE 

Effort  Theory.  —  As  we  have  seen,  one  of  the 
chief  objections  to  the  ethical  validity  of  the  labor 
theory  is  that,  in  its  apportionment  of  rewards,  no 
distinction  is  made  between  that  productive  effi- 
ciency which  is  due  to  abilities  patiently  and  labori- 
ously acquired  by  the  effort  of  the  individuals 
concerned,  and  that  which  results  from  the  qualities 
of  mind  and  body  naturally  given  by  heredity  or 
spontaneous  variation.  At  first  thought,  a  correc- 
tive to  this  defect  seems  to  be  given  by  making 
efforts  expended,  rather  than  actual  results  reached, 
the  distributive  criterion.  But  here,  to  an  even 
greater  degree  than  is  the  case  with  the  other 
standards  of  distributive  justice  which  we  have  con- 
sidered, the  principle  is  one  impossible  of  practical 
application.  The  fatal  difficulty  is  in  determining, 
even  approximately,  the  amount  of  effort  honestly 
expended  by  an  individual  in  the  performance  of  a 
given  piece  of  labor,  or,  if  determined,  of  comparing 
it  with  the  amounts  expended  by  other  individuals. 
As  Mackenzie  says :  "  Are  we  to  mean  by  effort  the 
amount  of  energy  expended  ?  or  are  we  to  mean 
the  difficulty  which  a  given  individual  experiences? 

194 


OTHER   CANONS    OF   DISTRIBUTIVE   JUSTICE  195 

The  difficulty  will  obviously  vary  with  the  abilities 
of  the  workers,  and  will  be  a  quite  incalculable  ele- 
ment; and  if,  instead  of  considering  the  difficulty 
for  a  given  individual,  we  consider  rather  the  diffi- 
culty for  an  average  human  being,  we  are  still  not 
freed  from  the  presence  of  a  factor  which  defies 
calculation.  There  are  some  forms  of  labor  which 
have  no  estimable  degree  of  difficulty  for  an  aver- 
age human  being,  but  are  strictly  impossible.  It 
is  not  allowed  medioerihus  esse  poetis,  and  there  is 
a  similar  prohibition  on  the  performance  of  all  the 
higher  forms  of  artistic  production  in  the  manner 
in  which  a  merely  average  human  being  could  per- 
form them.  The  reward  of  such  production,  there- 
fore, if  estimated  by  the  difficulty  for  an  average 
human  being,  would  be  expressible  only  by  an  in- 
finite magnitude.  The  same  remark  would  apply 
also  to  some  extent  to  the  labor  of  superintendence 
in  some  of  the  more  complicated  industries,  and  to 
the  work  of  the  scientific  investigator.  Nor  could 
we  escape  from  this  difficulty  by  endeavoring  to 
estimate  the  amount  of  energy  which  is  on  the 
average  expended  in  different  kinds  of  labor,  rather 
than  the  degree  of  difficulty  which  is  involved.  For 
there  is  no  common  measure  for  different  modes  of 
the  expenditure  of  human  energy.  Moreover,  even 
if  it  were  possible  to  evade  the  difficulties  in  the 
way  of  the  estimation  of  effort,  it  would  be  obvi- 
ously unfair  to  reward  labor  in  proportion  to  the 
effort  which  it  involves,  without  reference  to  the 
values   of   the   objects  which  are  produced  by  it  — 


196  SOCIAL   JUSTICE 

unless  it  could  be  assumed  that  all  forms  of  labor 
in  which  human  beings  engage  are  necessary  for 
the  well-being  of  society.  For  it  is  easily  possible 
to  expend  a  great  deal  of  effort  upon  objects  which 
no  sane  community  would  ever  think  of  encouraging ; 
and  even  on  objects  which  are  in  themselves  de- 
sirable it  is  easily  possible  to  expend  an  amount 
of  effort  which  is  quite  disproportionate  to  their 
value.  It  would  not  be  wise,  therefore,  to  propor- 
tion reward  to  effort,  unless  the  direction  of  efforts 
to  worthy  objects  were  very  strictly  enforced ;  and 
this  would  obviously  involve  serious  difficulties. 
Again,  it  is  not  at  once  obvious  what  forms  of 
activity  ought  to  be  regarded  as  constituting  effort 
at  all.  In  our  ordinary  conception  of  labor  we 
think  chiefly  of  muscular  effort,  with  which  it  is 
comparatively  easy  to  deal.  Whenever  we  go  be- 
yond this,  it  becomes  very  hard  to  determine  what 
is  and  what  is  not  labor,  and  still  harder  to  deter- 
mine what  is  and  what  is  not  the  product  of  any 
particular  labor."  ^ 

In  the  above  Professor  Mackenzie  has  effectively 
exhibited  the  practical  difficulties  inherent  in  any 
distributive  scheme  based  upon  effort.  He  might 
have  added  also,  however,  that  under  such  a  scheme 
it  would  be  necessary,  not  only  to  estimate  the 
amount  of  effort  put  forth  by  an  individual  in  a 
given  time  or  upon  a  given  work,  but  to  take  into 
consideration  the  amount  of  effort  that  may  have 
been  previously  exerted  by  that   individual  in   de- 

^  Introduction  to  Social  Philosophy,  2d  ed.,  p.  297. 


OTHER    CANONS    OF   DISTRIBUTIVE   JUSTICE  197 

veloping  his  natural  powers  to  a  higher  degree  of 
efficiency. 

The  means  of  measuring  effort  that  are  at  all  open 
to  estimate  are  the  time  employed  in  labor  and  the 
results  obtained.  Obviously  time  alone  cannot  meas- 
ure effort,  for  work  varies  in  intensity  and  arduous- 
ness.  Yet  if  we  attempt  to  measure  it  by  the  results 
reached,  we  are  brought  back  to  the  labor  theory, 
with  all  its  practical  difficulties  and  inequities. 

Aside,  however,  from  the  impossibility  of  applying 
the  canon  of  reward  according  to  effort  expended,  the 
rule  is  ethically  defective.  The  element  of  effort,  in 
truth,  must  serve  rather  as  the  basis  for  a  rule  of 
obligation  upon  the  agent  himself  than  as  a  prin- 
ciple of  desert  to  be  applied  by  the  distributing 
power.  Every  individual  is  under  a  moral  obliga- 
tion to  employ  his  talents  to  their  fullest  extent  for 
the  benefit  of  humanity.  This  being  so,  no  reward 
is  needed  or  indeed  demandable;  for  the  performance 
of  a  duty  cannot  furnish  a  claim  for  recompense. 
This  duty  to  labor  carries  with  it  also,  of  course,  the 
obligation  to  develop  to  the  utmost  activities  poten- 
tially possessed.  The  right  which  corresponds  to 
this  duty  is  not  to  proportionate  reward,  but  to  the 
opportunity  for  development  and  use  of  one's  capaci- 
ties. This  means,  not  merely  that  there  is  a  negative 
obligation  upon  others  and  upon  society  at  large  to 
refrain  from  such  action  as  will  prevent  the  use  and 
development  of  the  powers  of  the  individual,  but 
that,  so  far  as  means  allow,  each  person  should  have 
the  opportunity  of  obtaining  such  implements  and 


198  SOCIAL   JUSTICE 

materials  of  work  as  are  needed.  To  the  student, 
for  example,  this  would  mean  the  provision  of  books, 
teachers,  educational  facilities;  to  the  investigator, 
laboratories  and  apparatus ;  and  to  the  musician, 
musical  instruments. 

Abstractly  considered,  the  existence  of  the  obliga- 
tion upon  the  individual  to  work  creates  in  society  a 
right  to  compel  its  performance.  Practically  consid- 
ered, however,  the  actual  exercise  of  such  a  right, 
except  in  particular  instances,  is  impossible.  In  the 
first  place,  it  is  impossible  to  determine  the  character 
and  capacities  of  individuals.  In  the  second  place, 
even  if  determinable,  the  proper  exercise  of  at  least 
all  the  higher  kinds  of  activities  is  not  subject  to  any 
compulsion  that  society  is  able  to  apply.  Further- 
more, as  Mackenzie  points  out,  such  compulsion  can- 
not be  advocated  except  by  those  who  are  willing  to 
see  present  property  rights  seriously  interfered  with, 
if  not  absolutely  destroyed.  "  For  as  long  as  men 
are  allowed  to  acquire  property,  no  inducement  to 
labor  can  be  brought  to  bear  on  those  who  have 
acquired  it,  unless  some  sort  of  penalties  were  to  be 
devised ;  and,  so  far  as  one  can  at  present  judge,  no 
system  of  penalties  could  be  made  to  work."  And 
he  adds,  "  What  is  desirable  is  rather  that  those  who 
are  so  favorably  situated  should  employ  their  oppor- 
tunities —  as  some  actually  do  —  for  the  purpose  of 
rendering  to  the  State  or  to  society  such  services  as 
only  those  who  are  so  favorably  situated  can  render."  * 

Theory  of  Needs.  —  We  come  now  to  the  last  canon 

1  Op.  cit.,  p.  307. 


OTHER   CANONS    OF   DISTRIBUTIVE   JUSTICE  199 

of  distributive  justice  which  speculative  ethics  has 
suggested,  —  that  of  needs.  This  is  the  theory  which 
declares  that  want-satisfying  goods  should  be  given 
to  those  who  have  the  greatest  need  for  them,  that 
is,  to  those  in  whose  hands  their  consumption  or  util- 
ization will  be  productive  of  the  greatest  benefit. 

This  principle  of  justice  has  found  a  very  consider- 
able acceptance  among  communists  and  socialists. 
Thus  it  is  found  expressed  by  Cabet  in  his  Voyage  en 
Icarie,  which  bears  upon  its  title-page,  "A  chacun 
suivant  ses  hesoins,  de  chacun  suivant  ses  forces."  It 
is  also  accepted  by  Louis  Blanc,  as  appears  in  his 
well-known  motto,  "  De  chacun  selon  ses  facuUes,  a 
chacun  selon  ses  hesoins.'"  The  writer  who  has  most 
carefully  developed  the  argument  in  support  of  this 
principle  is,  however,  Godwin.  Godwin's  views  upon 
this  point  have  already  been  touched  upon  in  the 
treatment  of  the  extent  to  which  and  the  manner  in 
which  the  idea  of  impartiality  should  enter  into  the 
conception  of  justice.  Godwin's  argument,  we  will 
remember,  was  that,  where  discrimination  is  made 
between  individuals,  the  sole  determining  factor 
should  be  the  relative  values  to  society  of  the  indi- 
viduals concerned.  The  logical  corollary  to  this  is, 
that  want-satisfying  goods  should  be  distributed 
according  to  the  relative  intensity  of  the  needs 
which  the  individuals  concerned  have  for  the  com- 
modities that  are  to  be  distributed. 

"  To  whom,"  asks  Godwin,  "  does  an  article  of 
property,  suppose  a  loaf  of  bread,  justly  belong  ? 
To  him  who  most  wants  it,  or  to  whom  the  possession 


200  SOCIAL   JUSTICE 

of  it  will  be  most  beneficial  ?  Here  are  six  men  fam- 
ished with  hunger,  and  the  loaf  is,  absolutely  consid- 
ered, capable  of  satisfying  the  cravings  of  them  all. 
Who  is  it  that  has  a  reasonable  claim  to  benefit  by 
the  qualities  with  which  this  loaf  is  endowed  ? " 
And  he  answers  the  question  by  saying,  "  If  justice 
have  any  meaning,  nothing  can  be  more  iniquitous 
than  for  one  man  to  possess  superfluities,  while  there 
is  a  human  being  in  existence  that  is  not  adequately 
supplied  with  these."  Furthermore,  Godwin  goes 
on  to  say :  "  Justice  does  not  stop  here.  Every 
man  is  entitled,  so  far  as  the  general  stock  will  suf- 
fice, not  only  to  the  means  of  being,  but  of  well-being. 
It  is  unjust  if  one  man  labor  to  the  destruction  of  his 
health  or  his  life  that  another  man  may  abound  in 
luxuries.  It  is  unjust  if  one  man  be  deprived  of 
leisure  to  cultivate  his  rational  powers,  while  another 
man  contributes  not  a  single  effort  to  add  to  the 
common  stock.  The  faculties  of  one  man  are  like 
the  faculties  of  another  man.  Justice  directs  that 
each  man,  unless  perhaps  he  be  employed  more  bene- 
ficially to  the  public,  should  contribute  to  the  culti- 
vation of  the  common  harvest,  of  which  each  man 
consumes  a  share.  This  reciprocity,  indeed,  ...  is 
of  the  very  essence  of  justice."  ^ 

^Political  Justice,  Book  VIII,  Chapter  I.  It  would  seem  that, 
logically,  all  utilitarians  should  accept  this  principle  rather  than  that 
of  equality ;  for,  as  we  have  already  shown,  if  pleasure  be  the  great 
good,  the  greatest  aggregate  of  pleasure  will  be  the  greatest  good,  and 
this  will  obviously  be  obtainable  only  by  assigning  advantages  to 
those  who  have  the  greatest  need  for  them,  and  therefore  who  will 
derive  from  their  possession  the  most  intense  enjoyment. 


OTHER   CANONS   OF   DISTRIBUTIVE   JUSTICE  201 

It  is  quite  obvious  that  to  the  right  to  receive 
according  to  needs  should  be  joined  the  correspond- 
ing obligation  upon  individuals  to  render  to  society 
services  according  to  capacities  possessed.  Indeed 
we  find,  as  is  seen  in  the  formulas  of  Cabet  and 
Blanc,  that  this  has  been  generally  recognized. 

Considering  now  the  abstract  justice  of  this  prin- 
ciple of  need,  when  complemented  by  the  obligation 
of  service,  it  must  be  recognized  that  here  at  last  is 
a  doctrine  to  which  no  ethical  objection  can  be  made. 
Certainly  there  is  no  escape  from  the  logic  of  Godwin 
that,  other  things  being  equal,  a  given  commodity  or 
service  should  be  assigned  to  that  individual  who, 
among  all  his  fellows,  stands  most  in  need  of  it.  Nor 
is  there  any  possible  qualification  that  can  be  placed 
upon  the  general  obligation  upon  each  individual  to 
render  to  mankind  the  fullest  measure  of  benefit  that 
lies  within  his  power. 

But  in  accepting  these  principles  of  desert  and 
service,  it  is  of  course  to  be  understood  that,  in  the 
eyes  of  distributive  justice,  what  a  man  really  needs 
is  only  that  which  will  enable  him  best  to  fulfil  the 
moral  obligations  under  which  he  rests.  This  being 
so,  the  individual  can  claim  from  others,  or  from 
society  at  large,  a  satisfaction  of  his  needs  only  on 
the  ground  that  he  has  the  power  and  disposition  to 
make  their  satisfaction  ultimately  redound  to  his 
own  best  good  and  that  of  humanity.  And  thus  we 
are  led  back  to  the  principle  with  which  we  ended 
our  analysis  of  the  nature  of  justice ;  namely,  that  a 
man's  rights  are  measured  by  his  capacity  and  dispo- 


202  SOCIAL  JUSTICE 

sition  for  good,  and  imply  the  obligation  on  his  part 
to  seek  that  good. 

At  the  same  time,  however,  that  we  accept  this 
principle  of  needs  as  an  ideal  rule  of  justice,  we 
recognize  that  it  is  one  even  more  impossible  of  en- 
forcement by  law  than  any  of  the  other  distributive 
principles  heretofore  examined  and  rejected.  The 
impossibility  of  enforcing  the  obligation  of  service 
has  just  been  adverted  to  ;  while,  as  regards  the  dis- 
tribution of  goods  according  to  needs,  the  manifest 
difficulty  is  in  determining  man's  infinite  needs, 
their  relative  intensities  and  values.  The  determina- 
tion of  relative  intensities  is  sufficiently  difficult,  for 
the  most  loudly  voiced  wants  are  not  always  the  most 
urgent  needs;  but  when  estimation  of  the  compara- 
tive ethical  values  of  desires  is  attempted,  the  task 
becomes  a  clearly  hopeless  one. 

This  ideal  of  justice  which  we  have  accepted  must, 
then,  be  accepted  as  an  ideal  for  the  individual  rather 
than  as  one  to  be  enforced  by  the  law.  While  it 
may  not  furnish  definite  rules  of  conduct  to  the  indi- 
vidual, it  provides  at  least  the  touchstone  by  which 
he  may  guide  his  whole  life.  It  declares  to  him  the 
necessity  of  striving  at  all  times  to  realize  the  best 
that  is  in  him,  and  of  aiding,  whenever  possible, 
others  to  do  likewise.  It  teaches  him  that  wealth, 
opportunity,  and  personal  capacity  are  trusts  that 
are  to  be  administered  in  behalf  of  humanity.  It 
leaves  it,  however,  to  his  best  judgment  to  determine, 
as  each  particular  occasion  arises,  what  specific  duty 
is  thus  implied. 


OTHER   CANONS    OF   DISTRIBUTIVE   JUSTICE  203 

Right  to  Subsistence.  — A  modification  of  the  needs 
theory  is  that  which  holds  that  society  should  guar- 
antee to  every  individual  at  least  the  means  of  main- 
taining life.  As  applied  to  children,  the  aged,  the 
sick,  and  to  all  other  persons  who  are  disqualified  for 
work,  this  means  the  direct  provision  by  society  for 
their  needs.  As  applied  to  the  able-bodied,  it  means 
the  recognition  of  a  right  to  labor;  that  is,  not  sim- 
ply a  right  to  seek  employment,  but  to  find  it.  And 
this  necessarily  means  that  the  State  shall  provide 
work  for  those  who,  after  diligent  search,  have  not 
been  able  to  obtain  it  at  private  hands. 

This  alleged  "  right  to  labor "  has  played,  and 
indeed  still  plays,  a  prominent  part  in  socialistic 
thought,  and  has,  moreover,  exercised  no  unimpor- 
tant influence  upon  actual  legislation. 

The  influence  of  the  doctrines  of  the  right  to  sub- 
sistence and  of  the  right  to  labor  in  actual  legislation 
appears  in  the  English  poor  law  of  1601,  the  French 
Constitution  of  1791  and  1793,  and  the  Russian  civil 
code  of  5th  February,  1794,  all  of  which,  as  Menger 
says,  "  agree  in  the  declaration  that  the  State  or  the 
local  authorities  (commune,  parish,  etc.)  are  bound  to 
support  the  poor  or  to  provide  them  with  work." 
"  But  the  right  to  labor,"  as  Menger  hastens  to  add, 
"  must  be  distinguished  from  the  right  to  relief,  even 
when  this  is  given  in  the  form  of  work ;  for  the  right 
to  labor,  as  understood  by  socialists,  is  of  the  nature 
of  a  right  to  any  other  property,  and  is  neither 
founded  in  liberality  on  the  part  of  the  State  nor 
implies  indigence  on  the  part  of    the  claimant,  so 


204  SOCIAL   JUSTICE 

that  it  must  assume  the  humiliating  form  of  poor- 
relief."  ^ 

The  origin  of  the  idea  of  a  right  to  subsistence  as 
found  in  socialistic  thought,  so  far  as  traceable,  is  to 
be  found  in  the  writings  of  Fichte,  with  whom,  as 
Bonar  says,  "  the  modern  socialism  of  Germany  may 
be  said  to  begin."  ^  Thus,  after  declaring  that  the 
first  end  of  man  is  to  live,  and  that  this  involves 
the  right  to  live  by  his  own  labor,  Fichte  proceeds 
to  argue  that  it  must  be  one  of  the  duties  of  the 
State  to  see  to  it  that  this  right  is  rendered  possible 
of  realization.  And  therefore  he  concludes :  "  As 
soon  as  any  man  cannot  live  by  his  labor,  that  is 
withheld  from  him  which  was  absolutely  his  own, 
and  the  (social)  contract  is,  so  far  as  he  is  concerned, 
completely  annulled.  He  is  from  that  moment  no 
longer  rightfully  bound  to  recognize  any  other  man's 
property.  In  order  that  the  consequent  insecurity 
of  property  may  not  continue,  the  rest  must,  as  a 
matter  of  right  and  of  civil  contract,  give  him  of 
their  own,  that  he  may  live.  For  the  moment  that 
any  man  is  in  want,  no  one  really  owns  such  part  of 
his  property  as  is  his  needful  contribution  to  save 
the  sufferer  from  want."  ^ 

Fourier,  first  among  the  avowed  socialists,  empha- 

1  Right  to  the  Whole  Produce  of  Labor,  p.  14.  The  right  to  a  mini- 
mum of  subsistence  is  recognized  in  that  very  interesting  cooperative 
experiment  established  by  M.  Godin  and  known  as  the  Societe  du 
Familistere  de  Guise.  For  a  detailed  account  of  the  organization  of 
and  results  reached  by  this  association,  see  Bulletin  No.  6  of  the 
United  States  Department  of  Labor,  article  by  W.  F.  Willoughby. 

2  Philosophy  and  Political  Economy,  p.  280. 

^Science  of  Rights,  Part  II,  Book  III,  §  1.     Cf.  Bonar,  op.  cit.,  p.  285. 


OTHER   CANONS   OF   DISTRIBUTIVE   JUSTICE  205 

sizes  the  right  of  labor,  or  to  subsistence  in  case  of 
disqualification  for  work.^  Fourier's  ideas  were  re- 
peated by  Considerant  in  bis  pamphlet,  Theorie  du 
droit  de  propriete  et  du  droit  au  travail  (published 
1839).  "A  model  of  brevity  and  clearness,"  says 
Menger,  "  Considerant's  pamphlet  had  a  great  success ; 
if  we  accept  Louis  Blanc's  cry  of  the  organization  of 
labor,  which  he  borrowed  from  the  Saint  Simonians 
and  propagated  in  his  famous  work,  there  is  hardly 
a  question  so  often  discussed  in  the  socialist  papers 
and  pamphlets  of  the  Forties  as  this  of  the  right  to 
labor.  So,  when,  after  the  revolution  of  February, 
the  proletariat  became  for  the  moment  the  deter- 
mining factor,  it  immediately  extorted  from  the 
provisional  government  the  proclamation  of  Febru- 
ary 4,  1848,  recognizing  the  right  to  labor,  which 
was  afterward  incorporated  in  the  French  legal  code."  ^ 
The  alleged  attempt  on  the  part  of  the  French 
government  to  apply  this  principle  in  practice  by 
the  establishment  of  national  workshops  according 
to  the  principles  outlined  by  Louis  Blanc,  is  a  matter 
of  history.  We  say  the  "  alleged  attempt,"  for  there 
is  good  reason  for  believing  that  there  was  no  serious 
effort  on  the  part  of  those  in  power  to  render  the 
experiment  a  successful  one.^ 

^He  does  not  appear  to  have  been  acquainted,  however,  with 
Fichte's  previous  elaboration  of  this  point.     Cf .  Menger,  op.  cit.,  p.  17. 

"^  Op.  cit.,  p.  20.  The  text  of  the  proclamation  was  as  follows:  Le 
Gouvernement  provisoire  de  la  Republique  fran<;:aise  s'engage  a  garantir 
Vexistence  de  I'ouvrier  par  le  travail;  II  s'engage  a  garantir  du  travail  a 
tous  les  citoyens.'''' 

2  The  management  of  this  scheme  was  intrusted  to  one  fimile 
Thomas,  an  enemy  of  Blanc.     Thomas  himself  says  that,  when  given 


206  SOCIAL  JUSTICE 

The  most  recent  form  which  this  right  to  subsist- 
ence has  taken  in  actual  legislation,  is  insurance  of 
the  working-man  against  accident,  sickness,  and 
old  age.  In  its  complete  development,  this  scheme 
of  working-men's  insurance  "  comprehends  the  care 
and  indemnification  of  all  wage-earning  men  and 
women  in  case  they  are  incapacitated  for  work, 
either  temporarily  or  permanently,  as  the  result  of 
an  accident  or  sickness,  and  the  grant  to  them  of  a 
pension  after  they  are  no  longer  able  to  work  on 
account  of  physical  disability  or  old  age.  Under  it 
no  one  need  look  forward  with  apprehension  to  the 
privations  consequent  upon  sickness  or  accident. 
The  ever  constant  dread  of  dependent  old  age  is 
wiped  out  at  a  stroke.  It  constitutes,  therefore,  the 
latest  and  most  radical  measure  to  grant  thorough- 
going relief  in  the  chief  cases  of  suffering  to  which 
the  wage-earning  classes  are  now  exposed."  ^ 

Already  this  insurance  movement  has  made  great 
advances,  both  in  its  voluntary  and  compulsory 
forms.  Bismarck,  to  whom  more  than  any  one  else 
is  due  working-men's  insurance  as  it  now  exists  in 
Germany,  founded  his  policy  upon  an  unqualified 
adherence  to  the  doctrine  of  a  natural  right  of  all 
individuals  to  demand  from  the  state  or  society  of 

the  work,  he  was  informed  by  the  government  that  it  was  intended 
that  the  plan  should  fail,  and  that  the  theories  of  Blanc  should  be 
thereby  discredited. 

1  VV.  F.  Willoughby,  Working-men's  Insurance,  p.  1.  See  this  work 
for  an  account  of  the  extent  to  which  this  movement  has  already  gone^ 
not  only  upon  the  Continent,  but,  in  the  non-compulsory  form,  in 
England  and  the  United  States. 


OTHER    CANONS    OF   DISTRIBUTIVE   JUSTICE  207 

which  they  are  members  remunerative  employment 
sufficient  to  sustain  life  so  long  as  they  are  able- 
bodied,  and  subsistence  when  they  are  incapacitated. 
Thus  in  1878  he  declared ;  "  To  sum  up  my  position, 
give  the  laborer  the  right  to  labor  as  long  as  he  is 
in  health,  give  him  work  as  long  as  he  is  in  health, 
insure  him  care  when  he  is  ill,  and  insure  him  a  pro- 
vision when  he  is  old."  And  again  in  1884  we  find 
the  Imperial  Chancellor  replying  to  an  opponent :  "  I 
will  answer  the  first  question  upon  which  he  touched, 
the  ^  right  to  labor.'  Yes,  I  recognize  uncondition- 
ally a  right  to  labor,  and  shall  advocate  it  as  long  as 
I  am  in  this  place."  ^ 

Criticism.  —  An  abstract  right  to  labor  or  to  a 
minimum  subsistence  must  rest  upon  the  same 
theoretical  basis  as  the  general  right  to  receive 
according  to  needs ;  for,  in  fact,  it  represents  but 
the  demand  for  the  satisfaction  of  the  most  acute 
of  all  needs,  the  need  for  the  wherewithal  to  sup- 
port life.  But,  as  we  have  already  seen,  the  mean- 
ing of  this  right  is  that  only  such  desires  shall  be 
taken  as  denoting  true  needs  as  are  predicated  upon 
an  ability  and  disposition  to  add  something  to  the 
good  of  humanity.  From  this,  then,  it  necessarily 
follows  that  a  right  to  subsistence  or  to  labor  can  only 
be  maintained  when  it  appears  that  the  welfare  of 
humanity  will  be  advanced  by  the  continued  exist- 
ence of  the  individual  concerned.  Now,  inasmuch  as 
we  can  conceive  of  but  few  cases  in  which  the  good 


a' 


^  Quoted  by  Menger,  Right  to  the   Whole  Produce  of  Labor,  p.  12, 
note. 


208  SOCIAL   JUSTICE 

of  liumamty  clearly  demands  the  death  of  an  indi- 
vidual (except  in  cases  of  criminals,  which  we  shall 
consider  in  a  later  chapter)  in  actual  practice,  there 
is  almost  always  an  actual  right  in  the  individual 
to  have  social  arrangements  so  ordered  and  admin- 
istered that  he  may  be  guaranteed  at  least  a  sub- 
sistence so  long  as  he  renders  to  society  the  services 
of  which  he  is  capable.  But  the  existence  of  an 
absolute  right  even  to  life  we  deny,  as  we  have 
denied  all  other  absolute  rights ;  and  with  this  denial 
disappears  the  right  to  labor  or  subsistence  as  an 
absolute  right. 

Conclusion :  Kant,  Fichte,  Hegel,  Green.  —  The 
conclusions  to  which  we  have  been  brought  are 
such  as  follow  logically  from  our  acceptance  of  the 
principles  of  idealistic  ethics.  It  is  thus  but  natural 
that  we  should  find  in  the  writings  of  Kant,  Fichte, 
Hegel,  Ahrens,  Green,  and  their  followers  the  nearest 
apj)roach  to  our  own  views. 

The  central  conception  in  the  views  of  these  phi- 
losophers, as  to  the  ethical  justification  for  property, 
lies  in  the  relation  which  private  ownership  bears  to 
the  realization  of  the  will  of  the  owner.  Thus,  as 
Ahrens  says  in  his  JSfaturreclit :  "  Law  consists  in  the 
group  of  conditions  necessary  for  the  physical  and 
spiritual  development  of  man,  so  far  as  these  condi- 
tions are  dependent  on  human  will.  Property  is  the 
realization  of  the  sum  of  the  means  and  conditions 
necessary  for  the  development,  physical  or  spiritual, 
of  each  individual,  in  quality  or  quantity  conform- 
able  to   his   rational   wants.  .  .  .     For   every  man 


OTHER    CANONS    OF    DISTRIBUTIVE   JUSTICE  209 

property  is  a  condition  of  his  existence  and  develop- 
ment. It  is  based  on  the  actual  nature  of  man,  and 
should  therefore  be  regarded  as  an  original,  absolute 
right  which  is  not  the  result  of  any  outward  act, 
such  as  occupation,  labor,  or  contract.  The  right 
springing  directly  from  human  nature,  the  title  of 
being  a  man  is  sufficient  to  confer  a  right  of  property." 

The  claim  of  right  to  a  given  piece  of  property, 
then,  according  to  the  idealistic  conception,  depends 
upon  the  fact  that  the  claimant  deems  its  possession 
necessary  to  him  for  the  realization  of  his  will.  This 
is  what  Kant  means  when  he  says,  "  Anything  is 
mine  by  right,  or  is  rightfully  mine,  when  I  am  so 
connected  with  it  that  if  any  other  person  should 
make  use  of  it  without  my  consent  he  would  do  me 
a  lesion  or  injury ;  "  ^  and  again,  "  The  mode  of  hav- 
ing something  external  to  myself  as  mme  consists  in 
a  specially  juridical  [ethical]  connection  of  the  will 
of  the  subject  with  that  object,  independently  of 
the  empirical  relations  to  it  in  space  and  in  time, 
and  in  accordance  with  the  conception  of  a  rational 
possession."  ^ 

The  position  of  Hegel  as  to  the  rationality  of  pri- 
vate property  does  not  differ  essentially  from  that  of 
Kant,  as  may  be  seen  from  the  following  quotations 
from  his  Philosophy  of  Right :  ^  — 

"  A  person  must  give  to  his  freedom  an  external 
sphere  in  order  that  he  may  reach  the  completeness 
implied   in    the    idea.  .  .  .     The   reasonableness    of 

^Philosophy  of  Law,  translated  by  Hastie,  p.  61. 
^Idem,^.1^.  3  Translated  by  S.  W.  Dyde. 


210  SOCIAL  JUSTICE 

property  consists  in  its  satisfying  our  needs.  ...  It 
is  in  possession  first  of  all  that  the  person  becomes 
rational."  ^  '^  When  I,  as  a  free  will,  am  in  possession 
of  something,  I  get  a  tangible  existence,  and  in  this 
way  first  become  an  actual  will.  This  is  the  true  and 
legal  [ethical]  nature  of  property,  and  constitutes  its 
distinctive  character."  ^  "  The  doctrine  that  the  foun- 
dation of  property  lies  in  the  will,  that  property  is 
*  realized  will,'  is  true  enough  if  we  attach  a  certain 
meaning  to  '  will ' ;  if  we  understand  by  it,  not  the 
momentary  spring  of  any  and  every  spontaneous 
action,  but  a  constant  principle,  operative  in  all  men 
qualified  for  any  form  of  society,  however  frequently 
overborne  by  passing  impulses,  in  virtue  of  which 
each  seeks  to  give  reality  to  the  conception  of  a  well- 
being  which  he  necessarily  regards  as  common  to 
himself  with  others." ^  "The  rationale  of  property 
...  is  that  every  one  should  be  secured  by  society  in 
the  power  of  getting  and  keeping  the  means  of  real- 
izing a  will  which  in  possibility  is  a  will  directed  to 
social  good."  * 

In  the  lectures  of  T.  H.  Green  on  the  Principles  of 
Political  Obligation,  we  find  the  thought  of  Kant  and 
Hegel  substantially  reproduced.  The  following  ex- 
tracts will  sufficiently  indicate  this  :  — 

"Appropriation,"  he  says,  "is  an  expression  of 
will ;  of  the  individual  effort  to  give  reality  to  a  con- 
ception of  his  own  good ;  of  his  consciousness  of  a 
possible  self-satisfaction  as  an  object  to  be  attained. 

1  Op.  cit.,  §  41.  3  Qp,  cit.,  §  217. 

2  Op.  cit.,  §  45.  *  Op.  cit.,  §  221. 


OTHER   CANONS   OF   DISTRIBUTIVE   JUSTICE  211 

It  is  different  from  mere  provision  to  supply  a  future 
want.  Such  provision  appears  to  be  made  by  certain 
animals,  e.g.  ants."  But  in  individuals  appropriations 
^'are  not  merely  a  passing  employment  of  such 
materials  as  can  be  laid  hands  on  to  satisfy  this  or 
that  want,  present  or  future,  felt  or  imagined,  but 
reflect  the  consciousness  of  a  subject  which  distin- 
guishes itself  from  its  wants."  ^ 

"  The  rationale  of  property  .  .  .  requires  that 
every  one  who  will  conform  to  the  positive  condition 
of  possessing  it,  viz.  labor,  and  the  negative  condi- 
tion, viz.  respect  for  it  as  possessed  by  others,  should, 
so  far  as  social  arrangements  can  make  him  so,  be  a 
possessor  of  property  himself,  and  of  such  property 
as  will  at  least  enable  him  to  develop  a  sense  of 
responsibility,  as  distinct  from  mere  property  in  the 
immediate  necessaries  of  life."  ^ 

As  regards  private  ownership  of  land  in  particular, 
Green  has  the  following  to  say  :  "  The  only  justifica- 
tion for  this  appropriation  [of  land],  or  for  any  other, 
is  that  it  contributes  on  the  whole  to  social  well-being, 
that  the  earth  as  appropriated  by  individuals  under 
certain  conditions  becomes  more  serviceable  to  society 
as  a  whole,  including  those  who  are  not  proprietors 
of  the  soil,  than  if  it  were  held  in  common.  The 
justification  disappears  if  these  conditions  are  not 
observed."  ^  ^'  But  it  is  important  to  bear  in  mind 
that  the  question  in  regard  to  land  stands  on  a 
different  footing  from  that  in  regard  to  wealth 
generally,  owing  to  the  fact  that  land  is  a  particu- 

1  Op.  ciL,  §  213.  2  Op.  cit,  §  229.  »  Op.  cit.,  §  231. 


212  SOCIAL   JUSTICE 

lar  commodity  limited  in  extent,  from  whicli  alone 
can  be  derived  the  materials  necessary  to  any  indus- 
try whatever,  on  which  men  must  find  house-room  if 
they  are  to  find  it  at  all,  and  over  which  they  must 
pass  in  communicating  with  each  other,  however  much 
water  or  even  air  may  be  used  for  that  purpose.  These 
are  indeed  not  reasons  for  preventing  private  property 
in  land  or  even  for  bequest  of  land,  but  they  necessi- 
tate a  special  control  over  the  exercise  of  rights  of 
property  in  land."  ^ 

The  all-important  result  which  follows  from  the 
basis  which  these  writers,  and  which  we,  following 
them,  give  to  private  property  is  that,  while  the 
rightfulness  of  property  may  in  some  cases  be  denied 
where  its  legality  is  now  recognized,  in  those  cases 
in  which  private  ownership  is  authorized  a  far  deeper 
moral  sanction  is  furnished  than  could  ever  be 
obtained  from  such  empirical  facts  as  occupation  or 
labor.  All  private  property  now  becomes  in  essence 
a  trust,  and  implies  an  obligation  upon  the  owner  to 
utilize  the  advantages  which  its  possession  brings  for 
the  promotion  of  the  true  welfare  of  himself  and 
humanity.  And  thus  we  accept  as  a  correct  state- 
ment the  recent  declaration  of  Wundt,  that  "only 
that  kind  of  property  is  morally  justified  which  is 
used  for  moral  purposes.  Whatever  idle  or  waste- 
ful use  of  property  exists,  by  throwing  it  away  for 
selfish  purposes,  without  any  consideration  for  the 
welfare  of  society,  is  immoral." 

But,  as  in  the  case  of  our  definition  of  justice  in 

1  Op.  ciL,  §  231. 


OTHER    CANONS    OF   DISTRIBUTIVE   JUSTICE  213 

general,  there  are  probably  those  who  will  say : 
"All  this  is  true  enough,  but  it  is  very  vague. 
You  say  that  property  and,  in  fact,  all  advantages 
and  benefits  are  to  be  distributed  according  to 
needs.  But  how  are  we  to  know  in  any  particular 
case  just  what  justice  demands  ?  "  To  this  we  can 
but  repeat  that,  from  the  essential  nature  of  the  case, 
such  explicit  guidance  is  beyond  the  power  of  any 
system  of  ethics.  The  life  which  we  lead  is  a  com- 
plex one,  and  the  realization  of  one's  highest  self 
is  not  a  simple  matter.  It  is  one  that  requires  our 
whole  thought  and  highest  effort.  No  simple  thumb 
rules  can  guide.  All,  then,  that  we  can  say  —  all 
that  any  ethical  teacher,  whatever  his  doctrines, 
can  say  —  is  that,  in  each  instance  where  an  act  is 
required,  one  must  examine  it  as  to  all  its  possible 
results,  proximate  and  ultimate,  objective  and  sub- 
jective, and  then  ask  himself  whether  the  given 
line  of  conduct  is  more  calculated  than  any  other 
possible  line  of  conduct  to  advance  the  world  toward 
the  realization  of  the  highest  ethical  perfection. 


PAKT   II 

CHAPTER  VIII 

THE   RIGHT    OF    COERCION 

In  the  preface  to  his  Philosophy  of  Right 
Hegel  says :  "  Man  cannot  be  limited  to  what  is 
presented  to  him,  but  maintains  that  he  has  the 
standard  of  right  within  himself.  He  may  be  subject 
to  the  necessity  and  force  of  external  authority,  but 
not  in  the  same  way  as  he  is  to  the  necessity  of 
nature,  for  always  his  inner  being  says  to  him  how 
a  thing  ought  to  be,  and  within  himself  he  finds 
the  confirmation  or  lack  of  confirmation  of  what  is 
generally  accepted.  In  nature  the  highest  truth  is 
that  a  law  is.  In  right  a  thing  is  not  valid  because 
it  is,  since  every  one  demands  that  it  shall  conform 
to  his  standard.  Hence  arises  a  possible  conflict 
between  what  is  and  what  ought  to  be ;  between 
absolute  unchanging  right  and  the  arbitrary  decision 
of  what  ought  to  be  right." 

Thus,  as  Hegel  goes  on  to  show,  this  unique  privi- 
lege which  belongs  to  man,  his  rationality,  seems 
inevitably  to  lead  to  strife  and  discontent.  Yet,  if 
we  are  true  to  ourselves,  we  must  "  openly  meet  and 
face  our  reason  and  consider  the  rationality  of 
right." 

215 


216  SOCIAL  JUSTICE 

Never  more,  perhaps,  than  at  the  present  thne,  has 
there  been  need  for  the  firm  fixing  in  men's  minds  of 
logical  principles  of  justice,  in  accordance  with  which 
they  may  test  the  rightfulness  of  existing  social  and 
political  institutions  and  standards.  For  never  before 
has  the  critical  spirit  been  more  widespread.  Now,  as 
in  the  sophistic  period  of  Greece,  the  binding  power 
of  tradition  and  the  necessarily  sacrosanct  character 
of  the  demands  both  of  State  and  Church  are  ques- 
tioned. All  things  are  tested,  and  only  those  pro- 
nounced good  which  are  found  rational,  consonant 
with  the  critic's  own  canons  of  truth  and  reason. 
Hence  the  danger  lest  this  decentralization  or  indi- 
vidualization of  moral  authority  result  in  a  decen- 
tralization of  moral  obligation  which,  if  not  regulated 
by  well-established  principles  of  conduct,  will  give 
free  play  to  individual  prejudices  or  passions,  with 
a  resulting  loosening  of  social  and  political  bonds. 

This  danger  assumes  a  very  grave  form  when  it 
is  united,  as  it  sometimes  is,  to  that  other  doctrine 
which  declares  that  present  social  and  economic 
conditions  are  inherently  bad,  as  providing  for  a 
regime  in  which  the  many  are  pitilessly  sacrificed 
for  the  good  of  the  few.  In  the  entertaining  but 
sophistical  work  of  Mr.  Kidd  entitled  Social  Evolu- 
tion, the  attempt  is  made  to  give  to  this  declaration 
a  pseudo-scientific  form,  and  one  apparently  founded 
on  the  prevalent  evolutionary  doctrines  of  struggle 
for  existence  and  survival  of  the  fittest.  As  declared 
by  Mr.  Kidd,  self-interest  would  urge  the  majority 
to  put  an  end,  if   possible,  to  such  a  condition   of 


THE   EIGHT   OF    COERCION  217 

affairs,  even  though  to  do  so  would  possibly  be  to 
sacrifice  the  welfare  of  future  generations.  Why 
men  have  not  done  so,  he  says,  has  been  due  to  the 
teachings  of  the  Church,  which  has  promised  greater 
joys  in  a  world  hereafter,  and  enjoined  subordination 
of  self  to  society  as  the  divinely  appointed  means  of 
attaining  them.  In  other  words,  it  is  argued  that  a 
supernatural  sanction  to  social  good  has  been  made 
to  overrule  the  purely  rational  demand  for  self-good. 
The  necessary  implication  from  this  is  that,  with 
the  waning  power  of  the  Church  to  govern  men's 
temporal  action  by  simple  dicta,  and  the  correspond- 
ing increase  in  the  tendency  to  elevate  right  reason 
as  the  touchstone  of  all  obligation,  the  present  regime 
will  be  subjected  to  greater  and  greater  criticisms 
and  attacks.^ 

The  assumptions  made  in  the  above,  both  as  to 
the  essential  irrationality  of  social  subordination  and 
as  to  the  peculiar  characteristics  of  religion  are 
unwarranted ;  but  the  fact  that  they  are  made  and 
widely  accepted  serves  to  show  one  of  the  tendencies 
of  the  thought  of  the  age.  The  only  way  in  which 
such  appeals  to  the  reason  of  man  can  be  met  is  by 
the  counter  demonstration  of  the  rationality  of  the 
doctrines  and  the  institutions  which  they  decry. 

Coercion  means  restraint,  the  hindrance  of  one's 
freedom  of  action.  Before,  then,  we  can  consider 
coercion,  we  must  determine  what  we  mean  by  free- 
dom. Professor  Hyslop  points  out  in  his  Elements  of 
Ethics  that  the  idea  of  "  freedom  "  is  susceptible  of 

^  We  shall  return  to  Kidd's  theories  in  our  next  chapter. 


218  SOCIAL  JUSTICE 

three  distinct  meanings.  To  these  he  applies  the  terms 
*' Velleity,"  "  Spontaneity,"  and  "  Liberty."  Velleity 
refers  to  that  capacity  of  alternative  choice  which 
in  ethical  philosophy  has  received  the  name  "  free- 
dom of  will."  Spontaneity  refers  to  subjective  causa- 
tion ;  that  is  to  say,  to  the  initiation  of  one's  own 
act  whether  consciously  or  unconsciously  originated. 
Liberty  is  defined  as  exemption  from  external  re- 
straint—  a  restraint  which  "may  be  either  physi- 
cal or  social,  the  latter  being  meant  to  include  all 
political  restriction  upon  human  action."  Professor 
Hyslop  continues  :  "  We  call  a  person  free,  or  assert 
I  that  he  has  liberty,  when  external  forces  either  do 
(  not  determine  his  action  or  do  not  determine  the  cir- 
I  cumstances  limiting  the  alternatives  between  which 
I  he  has  to  choose.  ...  A  man  who  can  do  as  he 
pleases  without  suffering  a  penalty  for  it  is  said  to 
have  his  liberty,  or  to  be  free.  .  .  .  Climate,  gravita- 
tion, seasons,  geographical  conditions,  political  insti- 
tutions, economic  conditions,  and  a  thousand  other 
influences  are  at  work  to  limit  the  satisfaction  of 
desire.  To  that  extent  we  can  say  that  we  are  not 
free,  whereby  we  mean  merely  that  we  cannot  do 
as  we  please  without  incurring  disagreeable  conse- 
quences. Hence  freedom  or  liberty,  used  to  describe 
exemption  from  these  restraints,  means  only  a  condi- 
tion in  which  we  act  according  to  our  natural  desires. 
The  term  is  used  most  frequently  to  describe  a  polit- 
ical condition,  —  political  liberty,  whereby  we  mean 
exemption  from  the  laws,  customs,  and  restraints 
which   put   one   man   in   subjection   to  the  will   of 


THE   RIGHT   OF    COERCION  219 

others.  But  in  this  sense  no  man  is  absokitely  free. 
Any  one  is  under  some  restrictions,  and  perhaps 
ought  to  be.  They  do  not  compel  him  to  act  in  a 
given  way,  but  make  the  alternative  so  unpleasant 
that  none  except  the  permitted  course  will  probably 
be  chosen.  In  this  sense  freedom  or  liberty  is  a 
privilege  rather  than  a  power,  a  privilege  to  act 
with  impunity  rather  than  the  faculty  of  alternative 
action.  Thus  a  man  is  not  at  liberty  to  commit 
murder  and  escape  the  risks  of  punishment,  but  he 
has  the  power  to  commit  murder  and  to  accept  the 
penalty,  or  not  to  commit  it,  and  thus  to  be  free 
from  risk."  ^ 

Now,  it  will  not  be  questioned  that  the  essence  of 
morality  consists  in  the  use  of  one's  faculty  of  alter- 
native choice.  But  if  this  be  so,  neither  the  State 
nor  any  other  external  power  is  able  to  limit  one's 
moral  freedom,  —  to  restrain  the  power  of  conceiv- 
ing ends,  and  directing  one's  conduct  to  the  reali- 
zation of  the  chosen  end.  Certain  pleasant  or 
unpleasant  results  may  be  made  consequent  upon 
the  performance  of  particular  acts,  but  the  choice 
itself,  the  exercise  of  the  faculty  of  velleity,  cannot 
be  determined  or  controlled.  Thus  the  citizen  is 
ever  at  liberty  to  choose  whether  or  not  he  will  obey 
the  commands  of  his  government,  or  conform  to  the 
requirements  of  social  conventions ;  though,  to  be 
sure,  in  arriving  at  his  decision  he  has  to  take  into 
account  the  penalties  which  the  State  or  public  opin- 
ion attaches  to  disobedience  to  its  orders.       But  the 

1  The  Elements  of  Ethics,  p.  153. 


220  SOCIAL   JUSTICE 

decision  that  he  does  arrive  at,  whether  of  a  positive 
or  negative  character,  is  his  own  decision,  based 
upon  all  pertinent  circumstances,  and  he  is  morally 
responsible  therefor. 

In  exactly  the  same  way  a  man  has  the  power  of 
determining  whether  or  not  he  will  leap  from  some 
great  altitude,  or  perform  any  other  dangerous  act. 
In  such  cases  his  actual  choice  is  of  course  practically 
controlled  by  the  fact  that  bodily  injury  will  result 
in  the  one  case  and  not  in  the  other.  Yet  there  is 
no  one  would  maintain  that  it  is  immoral,  or  at  least 
needful  of  moral  justification,  that  natural,  i.e.  physi- 
cal, laws  should  impose  this  limitation  upon  one's 
desire  freely  to  exercise  his  own  muscular  powers. 

The  thought  immediately  arises,  however,  that 
there  is  an  essential  distinction  between  the  re- 
straints and  penalties  which  nature  imposes  and 
those  which  human  authority  creates.  There  is 
indeed  a  difference,  and  a  very  important  one.  This 
is,  that  the  coercion  of  nature  is  beyond  our  control, 
and  therefore  one  for  which  no  human  being  or 
beings  can  be  held  responsible ;  whereas  social  and 
political  restraints  are  artificially  created,  and  there- 
fore, as  to  any  particular  exercise  of  them,  within 
our  power  either  to  limit  or  abolish.  Nevertheless, 
looked  at  generally,  in  our  world  at  least,  absolute 
and  universal  freedom  from  restraints  humanly  im- 
posed is  as  impossible  as  release  from  the  limitations 
of  physical  environment. 

Were  we  in  a  world  in  which  the  apparent  inter- 
ests, and  therefore  the  desires,  of  individuals  never 


THE   RIGHT    OF    COERCION  221 

conflicted,  it  would  be  possible  to  imagine  a  society 
in  which  human  coercion  of  every  form  should  be 
absent.  For  under  such  circumstances  no  individual 
would  even  want  to  do  anything  that  any  other  indi- 
viduals would  object  to  his  doing,  or  would  desire 
others  to  do  anything  that  such  others  would  not 
themselves  desire  to  do.  As  soon,  however,  as  con- 
flicts of  interest  arise  either  between  different  indi- 
viduals, or  between  particular  individuals  and  the 
society  of  which  they  are  members,  or  between  dif- 
ferent societies  or  States,  the  appearance  of  restraints 
humanly  imposed  becomes  a  necessity.  For  where 
interests  conflict,  desires  conflict ;  and  where  desires 
conflict,  all  cannot  be  satisfied.  Either  each  will 
have  to  yield  in  part,  or  one  or  more  will  have  to 
give  way  completely  to  the  others.  Thus  it  follows 
that  if  one  individual  claim  a  "  right "  to  demand 
that  others  shall  refrain  from  certain  actions  which, 
though  prompted  by  their  own  natural  desires,  inter- 
fere with  his  own  freedom,  those  other  individuals 
cannot  be  considered  as  free  from  all  limitations 
other  than  those  imposed  by  physical  laws.  The 
assumption,  therefore,  of  an  a  2^riori  freedom,  or  lib- 
erty in  its  socio-political  sense,  is  self-contradictory. 
To  maintain  it  as  to  the  one  individual  is  to  deny  it 
as  to  all  other  individuals ;  while  to  maintain  it  as 
to  all  individuals  (which,  if  it  be  a  moral  right,  would 
be  logically  necessary)  is  to  deny  it  as  to  any  particu- 
lar individual. 

In  fine,  then,  in  any  such  world  as  we  now  live  in, 
the  question  is  not  as  to  whether  any  human  coer- 


222  SOCIAL   JUSTICE 

cion  shall  exist,  nor  even  as  to  how  much  of  it  there 
shall  be.  For  the  amount  of  restraint  that  must  exist 
is  absolutely  fixed  by  the  extent  to  which  interests 
conflict.  We  can  decrease  socio-political  restraints 
only  as  we  harmonize  interests.  Taking,  then,  any 
given  society  of  men  in  which  interests  have  not 
been  absolutely  harmonized,  the  sole  questions  that 
can  rationally  be  asked  are  as  to  which  of  conflicting 
desires  shall  be  satisfied,  and  what  form  the  neces- 
sary restraint  shall  take. 

When  we  consider  the  right  of  the  State  to  be  in 
this  light,  we  see  that  the  alternative  is  not  between 
coercion  and  freedom,  but  between  coercion  by  law 
and  coercion  by  individual  force. 

The  individual  is  not  endowed  with  a  natural  right 
to  freedom.  Nature  gives  to  him  only  powers,  and 
in  any  non-political  state  the  amount  of  compulsion 
that  he  would  suffer  at  the  hands  of  others  would 
far  exceed  that  exercised  by  any  government.  By 
the  creation  of  a  political  authority,  there  is  merely 
a  substitution  of  a  general,  definite,  paramount  force 
for  an  uncertain,  arbitrary,  individual  force.  With 
the  social  life  of  men,  antagonism  between  their 
respective  interests  and  spheres  of  activity  is  a  meta- 
physical necessity.  Absolute  freedom  of  every  one 
to  do  as  he  likes  is,  therefore,  out  of  the  question. 
The  only  question  is  whether  these  conflicts  shall  be 
settled  by  the  particular  strength  given  by  nature  to 
each  individual,  or  whether  the  compulsion  shall  be 
supplied  by  a  general  authority  created  by  a  union 
of  strengths. 


THE   RIGHT   OF    COERCION  223 

This  is  sufficient  to  dispose  of  the  argument  that 
men  are  born  free,  but  are  by  the  establishment  of 
civil  government  reduced  to  servitude.  But  we  may 
go  farther  than  this,  and  declare  that  in  an  original 
and  lawless  state  of  nature  such  as  is  posited  by 
some,  not  even  the  thought  or  idea  of  a  right  to  free- 
dom from  human  coercion  could  arise. 

In  another  work,  where  I  have  examined  the  rea- 
soning contained  in  the  doctrines  of  "  natural  law  " 
and  of  "social  compact,"  I  have  written  substantially 
as  follows :  — 

"  Having  now  reduced  so-called  Natural  Law  to  its 
proper  ideal,  relative,  moral  character,  we  have  finally 
to  show  that,  even  in  this  sense,  the  term  is  not 
applicable  to  any  form  of  regulation  that  can  con- 
ceivably exist  in  a  completely  non-social,  non-politi- 
cal "State  of  Nature  "  such  as  is  necessarily  postulated 
by  Contract  writers  as  the  condition  from  which  the 
establishment  of  political  life  relieved  mankind. 
That  is  to  say,  we  have  to  demonstrate  that,  when 
in  a  "  State  of  Nature  "  men  are  said  to  be  ruled  by 
^'  Laws  of  Nature,"  these  laws  cannot  be  held  to  be 
of  even  a  moral  validity.  That,  therefore,  when  the 
original  contract  is  held  to  rest  upon,  as  Hobbes  says, 
that  Law  of  Nature,  '  that  men  perform  their  cove- 
nants made,'  ^  an  assumption  is  made  that  cannot  be 
logically  justified. 

"  That  this  is  so,  we  may  see  by  picturing  again  to 
ourselves  just  what  would  be  the  condition  of  man- 
kind in  a  completely  non-political  state.     In  such  a 

^  Leviathan,  Chapter  XV. 


224  SOCIAL   JUSTICE 

'  State  of  Nature,'  there  is,  ex  liypothesi,  an  utter 
and  entire  absence  of  human  association  and  concert 
of  action,  the  only  rules  for  the  regulation  of  conduct 
that  can  possibly  obtain  being  Natural  Laws,  as  used 
in  that  sense  which  identifies  them  with  the  natural 
instincts  of  all  living  beings,  men  and  brutes  alike, 
to  maintain  their  own  existences,  and  to  satisfy  the 
desires  that  their  own  natures  give  rise  to.  Under 
such  a  regime,  passion  and  momentary  inclination 
necessarily  have  full  sway,  and  an  unmitigated  and 
pitiless  struggle  for  existence  prevails. 

"  It  need  not  be  said,  then,  that  under  such  condi- 
tions there  cannot  arise  in  the  minds  of  individuals 
any  recognition  of  '  rights '  on  the  part  of  other 
individuals  which  should  be  respected  by  them  inde- 
pendently of  their  power  to  maintain  them.  Thus 
defining  '  right '  as  a  man's  capacity  of  influencing 
the  acts  of  another  by  means  other  than  his  own 
strength,  we  may  agree  with  Green  that  '  natural 
right  as  right  in  a  State  of  Nature  which  is  not  a 
state  of  society,  is  a  contradiction.  There  can  be  no 
right  without  a  consciousness  of  common  interest 
on  the  part  of  members  of  a  society.  Without  this 
there  might  be  certain  powers  on  the  part  of  indi- 
viduals, but  no  recognition  of  these  powers  by  others 
as  powers  of  which  they  should  allow  the  exercise, 
nor  any  claim  to  such  recognition ;  and  without  this 
recognition  or  claim  to  recognition  there  can  be  no 
right.'  ^ 

1  T.  H.  Green,  "  Lectures  on  the  Principles  of  Political  Obligation," 
Philosophical  Works,  Vol.  II,  p.  354. 


THE   EIGHT   OF   COERCION  225 

"  In  the  absence,  then,  of  ^  rights,'  as  distinct  from 
*  powers,'  the  term  'morality'  can  have  no  applica- 
tion to  a  State  of  Nature  as  above  considered.  For 
morality,  in  at  least  its  social  aspect,  has  no  other 
basis  than  the  recognition  and  respect  of  others' 
rights.  The  same  is  true  of  the  term  '  justice,'  by 
which  is  meant  the  giving  to  each  one  his  proper 
'  rights.'  Hence  follows  the  truth  of  the  thesis 
stated  above,  that  in  such  a  non-civic  state  there  can- 
not arise  even  the  sense  of  a  moral  obligation  to 
observe  covenants  entered  into.  In  fact,  the  mere 
propounding  of  the  question,  '  Why  should  I  be 
forced  to  do  this  or  that  ? '  implies  that  I  claim  a 
certain  freedom  that  should  be  respected  by  others 
independently  of  my  power  to  maintain  it."  ^ 

In  that  extremely  interesting  work  of  Mr.  W.  S. 
Lilly  entitled  Right  and  Wrong,  it  is  said  :  "  Un- 
questionably, it  is  society  alone  that  gives  validity 
to  right,  for  man  is,  in  Aristotle's  phrase,  a  political 
animal.  If  we  follow  the  historical  method  only, 
we  must  pronounce  the  birthplace  of  right  to  have 
been  the  family,  from  which  civil  polity  has  been 
developed.  But  if  we  view  the  matter  ideally,  we 
must  say  that  the  experience  of  the  race  is  merely 
the  occasion,  not  the  cause ;  it  does  not  create,  it 
merely  reveals  right.  The  social  organism  exhibits 
that  which  lies  in  the  nature  of  man,  deep  down 
in  the  inmost  recesses  of  his  being,  but  which  could 
never  have  come  out  of  him  in  isolation.  The  idea 
of  right  unfolds   itself   in   history  as   the  vivifying 

1  The  Nature  of  the  State,  pp.  106-110. 


226  SOCIAL  JUSTICE 

principle  of  those  public  ordinances  and  political 
institutions  whereby  we  live  as  civilized  men ;  the 
justification  of  the  common  might  which  without  it 
would  be  mere  brute  force." 

Mr.  Lilly  has  here  stated  in  his  usual  delightful 
style  an  essential  truth  and  yet,  we  fear,  enveloped 
it  in  some  ambiguity  by  the  use  of  the  abstract  term 
"  right "  to  express  two  essentially  different  things. 
We  may,  and  in  fact  must,  grant  that  there  does 
exist,  apart  from  all  human  creation  or  control,  an 
eternal  distinction  between  right  and  wrong,  and 
that  similarly  there  are  certain  eternal  canons  of 
conduct,  or  criteria,  in  accordance  with  which  the 
morality  and  justice  of  every  act  is  to  be  finally 
determined,  and  that  these  principles  may  be  sub- 
sumed under  the  abstract  term  "  right."  In  this 
sense,  society  or  State  does  not  create  right,  but 
only  renders  more  possible  of  realization  the  practi- 
cal principles  which  are  to  be  deduced  from  its 
recognition.  But  rights,  that  is,  claims  of  the  indi- 
vidual to  certain  spheres  of  activity  within  which 
he  shall  not  be  limited  by  other  individuals, — 
these  are  not  only  rendered  possible  of  realization 
by  society  and  the  State,  but  they  are  created  by 
society  and  the  State,  and  cannot  be  conceived  as 
existing  either  actively  or  potentially  apart  from  the 
social  and  political  body.  They  have  a  significance 
only  in  connection  with  social  and  political  aggre- 
gates. Right,  as  we  have  defined  it,  may  exist  apart 
from  human  association  ;  rights,  never. 

In  the  work  from  which  I  have  above  quoted,  I 


THE   RIGHT   OF   COERCION  227 

concluded  my  argument  by  declaring  that  "  we  thus 
find  that  the  demand  for  a  moral  justification  of  the 
State  is  an  unnecessary  one.  If  political  govern- 
ment does  not  render  the.  individual  less  free  than 
he  would  be  without  it,  its  authority  does  not  require 
a  moral  justification.  There  is  no  presumption  of 
unwarranted  interference  to  be  rebutted."  ^ 

The  accusation  has  been  made  by  an  able  critic 
that  there  is  a  confusion  of  thought  in  at  least  some 
of  the  points  made  in  the  foregoing  paragraphs. 
After  quoting  with  approval  the  assertion  that,  para- 
doxical as  it  may  seem,  it  is  true  that  freedom  exists 
only  because  there  is  restraint,  this  critic  continues : 
•"  But  because  this  is  so,  and  more  liberty  is  created 
than  is  abridged  by  the  State,  it  does  not  follow  that 
the  problem  he  set  out  to  resolve  can  be  disposed  of 
by  saying  that  it  was  falsely  stated,  and  that  a  moral 
justification  of  the  State  is  shown  to  be  unnecessary. 
The  liberty  that  is  the  fruit  of  political  organization 
is  not  that  freedom  of  choice  inherent  in  morality 
which  as  more  or  less  limited  by  the  State  (so  far 
as  it  is  an  authoritative  institution)  alone  gives  rise 
to  any  fundamental  moral  problem.  There  are  really 
two  senses  of  the  word  'freedom,'  According  to 
one,  we  are  free  when  we  can  do  what  we  will.  Ac- 
cording to  the  other,  we  are  free  when  we  can  choose 
what  we  will  do.  The  one  relates  rather  to  the  act 
externally  considered  ;  the  other  to  the  psychological 
conditions  antecedent  to  the  act  (neither,  we  may 
add,  involving   any   metaphysical   'freedom   of    the 

1  The  Nature  of  the  State,  p.  111. 


228  SOCIAL  JUSTICE 

will ').  Because  positive  or  external  freedom  is  in- 
creased by  the  State,  it  does  not  follow  that  freedom 
in  the  other  sense  is  not  abridged  or,  in  some  cases, 
denied.  The  individual  does  not  choose  what  taxes 
he  will  pay,  but  he  has  to  pay  them.  Both  as  to 
the  amount  and  as  to  the  paying,  he  is  subject  to  an 
external  authority,  and  the  problem  from  the  ethical 
side  is.  How  is  this  authority  to  be  justified  ?  "  ^ 

As  for  the  criticism  that  a  discrimination  has  not 
been  made  between  the  two  senses  of  freedom  —  free- 
dom to  do  and  freedom  to  choose  —  it  would  appear 
that  the  critic  is  himself  confused.  We  admit  that 
there  is  a  real  distinction  between  doing  and  choos- 
ing, and  that  morality  attaches  to  the  latter  rather 
than  to  the  former.  But  this  freedom  of  choice,  as 
subject  to  ethical  estimate,  can  only  refer  to  that 
capacity  of  alternative  choice  of  ends  to  which  we 
have  applied  the  term  "  velleity,"  and  over  which,  as 
we  have  already  said,  the  State  can  have  no  possible 
control.  If  an  act  be  brought  about  by  physical 
force,  actually  and  coercively  applied,  as  where  one 
by  brute  strength  compels  another  against  his  will 
and  against  his  physical  resistance  to  commit  a  cer- 
tain act,  that  act  certainly  is  such  a  compelled  act  as 
releases  the  compelled  one  from  all  moral  responsi- 
bility. But  if  the  compulsion  consist  merely  in  the 
threat  of  certain  penalties  in  case  of  its  non-perform- 
ance, there  still  remains  a  moral  responsibility  upon 
the  individual,  though  it  is  a  responsibility  that  has 

1  International  Journal  of  Ethics,  October,  1896,  p.  116.  Review  by 
Mr.  William  M.  Salter  of  my  book,  The  Nature  of  the  State. 


THE   RIGHT    OF    COERCION  229 

to  be  determined  in  the  light  of  the  new  condi- 
tions which  have  been  introduced  by  the  sanction 
of  the  State  and  the  threat  of  punishment  in  case 
of  disobedience. 

It  must  be  admitted,  however,  that  the  assertion 
that  there  is  not  needed  a  moral  justification  for  the 
control  of  the  State  was  too  baldly  stated.  Still,  I 
think  that  the  argument  which  it  concluded  made  it 
sufficiently  plain  that  what  was  there  intended  to  be 
maintained  was  that  the  demand  for  an  abstract  or 
a  priori  justification  of  the  right  of  State  control,  or 
in  fact  of  any  form  of  coercion,  is  an  illegitimate 
one.  To  ask  the  question  whether  the  State  has  a 
right  to  be,  without  reference  to  a  particular  State, 
is  as  little  sensible  as  to  ask  whether  a  picture  is 
beautiful  without  designating  some  particular  one  to 
which  the  judgment  is  to  be  applied. 

It  undoubtedly  appears  to  most  of  us  as  beyond  all 
serious  question  that  all  States  are  justified — that 
the  existence  of  even  the  very  worst  of  them  is 
better  than  would  be  the  anarchical  condition  that 
would  result  from  its  absence;  but  there  is  no  theo- 
retical impossibility  of  a  State  lacking  such  a  rational 
basis.  The  existence  of  any  given  State  as  actually 
controlled  has  or  has  not  a  moral  justification,  accord- 
ing to  whether  or  not  its  activities  tend  upon  the 
whole  to  promote  the  realization  of  the  moral  ideal. 
The  only  way  in  which  the  moral  element  enters  is 
as  to  the  manner  in,  and  the  extent  to,  which  the 
power  of  the  State  is  exercised.  The  "  code  of 
morality  "  of  a  given  community,  as  including  those 


230  SOCIAL  JUSTICE 

rules  of  human  conduct  that  satisfy  the  general  sense 
of  moral  right  and  justice  of  that  community, 
whether  founded  on  eternal,  immutable  principles  of 
right  and  wrong,  upon  the  dictates  of  man's  con- 
science as  completely  autonomous,  upon  reason,  or 
upon  utility  as  revealed  by  inherited  experience,  is 
necessarily  relative  to  the  state  of  enlightenment, 
character  of  religion,  economic  conditions,  and  civili- 
zation in  general  of  the  particular  people  by  whom 
its  provisions  are  recognized.  Taking  any  code  of 
morality  at  any  one  time,  the  laws  of  a  State  are  in 
that  light  morally  justified  just  to  the  extent  to 
which  they  coincide  with  its  provisions.  But  even 
in  this  respect  it  is  to  be  noticed  that  in  approximat- 
inor  law  to  ethical  commands  reference  must  be  had 
not  only  to  the  abstract  ethical  end  to  be  obtained, 
but  to  the  practical  possibility  of  attaining  that  end 
by  the  physical  compulsion  supplied  by  the  law  and 
the  very  rough  means  at  its  disposal  for  evaluating 
moral  merit  or  guilt.  Also,  the  still  further  question 
is  to  be  considered,  whether  or  not  the  substitution 
of  legal  compulsion  for  voluntary  action,  while  pos- 
sibly securing  more  general  conformity  to  the  princi- 
ple indicated,  may  not  lessen  men's  feeling  of  moral 
obligation  in  the  premises.  For  where  men  obey 
from  necessity  the  ethical  duty  is  soon  forgotten. 

In  thus  bringing  a  particular  State  to  the  bar  of 
moral  criticism,  it  is  rather  its  activities  than  its  own 
right  to  existence  which  is  brought  to  trial.  The 
right  to  be  of  the  political  authorit}^  itself  is  not  in 
issue,  for,  as  abstractly  considered,  that  is,  apart  from 


THE   EIGHT   OF   COERCION  231 

any  particular  form  of  organization  or  manner  of 
operation,  there  is  no  basis  upon  which  a  judgment 
may  be  founded.  It  is  not  until  the  State  manifests 
its  power  and  authority  that  material  is  afforded  to 
which  moral  estimates  may  be  applied.  Further- 
more, it  is  to  be  remarked,  though  it  can  hardly  be 
necessary  to  do  so,  that  in  considering  the  morality 
of  a  command  of  the  State  there  is  no  pretence  that 
the  fact  that  it  is  the  command  of  the  State  enters 
in  any  degree  as  an  absolutely  determining  factor. 
There  is  only  to  be  asked  by  the  individual  in  each 
particular  case  whether  he,  as  a  morally  responsible 
person,  should  obey  or  disobey.  The  act  has  a  moral 
or  immoral  character  only  as  to  the  individual,  and 
what  moral  responsibility  there  is  exists  only  for  him. 
When  the  State,  however,  has  commanded  a  cer- 
tain line  of  conduct,  that  fact,  though  not  determi- 
nant of  the  morality  of  the  command  abstractly  con- 
sidered, is  yet  one  which  the  individual  is  morally 
bound  to  consider  in  determining  what  his  own 
actions  shall  be.  While  it  must  be  held  that  the 
individual  has  at  all  times  the  moral  right  —  nay, 
that  he  is  morally  bound  —  to  refuse  obedience  to 
those  laws  which  he  deems  to  be  unjust  or  immoral 
for  any  reason,  yet  he  is  also  bound  to  take  into  con- 
sideration, in  estimating  all  the  consequences  of  such 
an  act,  that  disobedience  to  a  command  of  the  State 
will  tend  to  weaken  to  some  extent  the  reverence  for 
law  in  general,  and  will  thus  have  an  influence  in  dis- 
solving those  social  and  political  bonds  that  in  the 
aggregate  promote  to  such  a  degree  the  realization 


232  SOCIAL   JUSTICE 

of  morality  as  a  whole.  The  moral  right  of  resistance 
as  well  as  of  revolution  cannot  be  denied,  but  it  is 
a  right  only  to  be  justified  by  a  consideration  of  all 
the  consequences,  proximate  and  ultimate,  individual 
and  social,  which  attend  its  exercise. 

The  question  is  sometimes  asked  whether  the  State 
itself  has  moral  duties.  This  may  be  answered  in 
the  negative.  Considered  in  itself  the  State  is  not 
a  moral  entity ;  it  owes  no  responsibility  to  any 
superior  being  or  power;  it  has  no  conscience.  Nor 
has  a  People,  when  considered  as  a  political  unity  as 
distinguished  from  the  arithmetical  sum  of  its  con- 
stituent individuals.  Morality  applies  only  to  human 
individuals.  These  have  moral  duties  of  a  threefold 
character :  First,  such  as  belong  to  them  as  indepen- 
dent and  distinct  individuals ;  that  is,  the  duties 
which  they  owe  to  themselves  alone.  Secondly,  they 
have  duties  as  social  beings ;  that  is,  duties  not 
directly  connected  with  personal  matters,  but  with 
the  welfare  of  the  society  to  which  they  belong. 
Thirdly,  they  are  under  moral  obligations  that  arise 
from  their  society  being  politically  organized;  that 
is,  constituting  a  State.  From  the  common  recogni- 
tion by  individuals  that  it  is  their  duty  to  make  the 
State  subserve  moral  ends,  there  is  created  a  moral 
ideal  for  the  State  which  does  not  correspond  exactly 
with  the  ideal  of  any  one  individual,  but  is  rather  a 
sublimation  of  all  individual  ideals.  But  the  respon- 
sibility of  seeing  that  this  moral  ideal  is  striven  for 
rests  ultimately  with  the  individuals.  Not  all  con- 
tribute   alike  to  the  formation  of   the  will  of  the 


THE   RIGHT    OF   COERCIO^T  233 

State,  and  hence,  just  to  the  extent  to  which  one  does 
contribute  by  his  influence  to  the  formation  of  an 
effective  political  opinion,  he  is  under  moral  obliga- 
tion to  make  that  political  opinion  moral  in  character 
and  directed  to  the  securing  of  the  highest  possible 
ethical  ideals. 

The  moral  responsibility  for  all  political  action 
may  not,  therefore,  be  shifted,  either  in  whole  or  in 
part,  upon  an  abstract  political  being,  but  rests  wholly 
upon  the  individuals,  whether  they  be  public  officials 
or  private  citizens ;  and  this  in  exact  proportion  not 
only  to  the  extent  to  which  they  actually  do  have  an 
influence  in  directing  the  course  of  public  affairs,  but 
to  the  extent  to  which  it  lies  within  their  individual 
powers,  should  they  use  their  real  opportunities,  to 
direct  the  power  of  the  State  to  the  attainment  of  its 
proper  ends. 

Repeating,  then,  by  way  of  summary,  the  general 
results  of  our  inquiry  regarding  the  rightfulness  of 
political  restraint,  we  may  say  that  freedom  and 
restraint  are  but  the  obverse  sides  of  the  same  shield, 
—  that  freedom  has  no  meaning  apart  from  restraint, 
and  that  thus  metaphysically  as  well  as  practically 
the  two  conceptions  are  united.  Just  as  the  individ- 
ual has  no  "  right "  to  freedom  as  opposed  to  state 
constraint,  so  the  State  has  no  general  right  (except 
in  the  legal  sense)  to  compel  the  individual.  The  pre- 
sumption is  neither  way.  In  practice  the  assertion 
of  an  authority  whether  by  the  individual  or  by  the 
State  is  limited  by  physical  might,  and  in  each  indi- 
vidual case  where  there  is  a  conflict,  it  is  a  proper 


234  SOCIAL  JUSTICE 

subject  for  ethical  inquiry  as  to  whether  the  act  com- 
manded by  the  State  or  desired  by  the  individual  is 
morally  the  preferable.  There  is  no  distinction  in 
ethical  kind  between  the  two  authorities.  The  exist- 
ence of  the  State  can  only  be  morally  justified  if,  as 
a  whole,  its  influence  tends  to  promote  the  realization 
of  moral  ends.  It  is  not  to  be  justified  in  itself ;  that 
is,  independently  of  the  manner  in  which  its  might 
is  actually  exercised.  Considered  abstractly  as  a 
political  entity,  as  simply  an  institution,  it  neither 
possesses  moral  responsibility,  nor  can  it  either  deter- 
mine the  morality  of  an  act  or  limit  the  moral  free- 
dom of  the  individual.  Resting  upon  no  superhuman 
basis,  it  cannot  legislate  in  the  ethical  field.  Unre- 
lated to  any  superior  being,  and  having  no  concrete 
existence  apart  from  the  individual  beings  of  whom 
it  is  composed,  and  having  a  continued  identity  only 
as  conceived  apart  from  them,  it  is  necessarily  with- 
out moral  responsibility.  Limited  in  its  means  of 
coercion  to  physical  penalties,  it  cannot  limit  man's 
velleity  or  freedom  of  alternative  choice. 

There  are  two  distinct  ways  in  which  we  may 
Mtempt  the  positive  justification  of  a  given  social 
control.  The  one  is  utilitarian,  the  other  transcen- 
dental. The  one  denies  outright  that  self-interest, 
when  enlightened,  is  an  anti-social  motive ;  the  other 
seeks  to  show  that  man,  by  his  very  nature,  is  actu- 
ated by  certain  motive  forces  which  can  only  find 
free  play,  and  is  destined  to  a  certain  end  which  can 
only  be  approached,  in  a  social  state  in  which  men 
practice  mutual  forbearance  toward  one  another,  and 


THE   RIGHT   OF   COERCION  235 

recognize  a  general  subordination  to  some  sort  of 
social  or  political  control.  Comte,  Mill,  and  Spencer 
are  probably  the  leading  representatives  of  the  first 
method;  Hegel,  Green,  and  their  idealistic  followers 
the  chief  exponents  of  the  second.  Both  schools 
admit  that  the  individual  reason  must,  in  the  last 
resort,  be  the  absolute  judge  of  the  rightfulness  of  a 
given  control  which  is  exercised  over  him,  but  they 
differ  both  as  to  character  and  as  to  the  origin  of  the 
motives  which  should  control  that  judgment.  Ac- 
cording to  the  positivists,  social  relationships  provide 
not  only  the  medium  in  which  morality  is  exercised, 
but  the  instruments  through  which  the  moral  instinct 
is  itself  created.  The  governing  motive  is  held  to  be 
always  utilitarian,  though  not  in  the  bald  Bentham- 
istic  sense,  but  in  the  universalistic  sense  of  Mill,  or 
the  rationalistic,  evolutionary  sense  of  Spencer.  Ac- 
cording to  the  idealists,  or  transcendentalists,  on  the 
other  hand,  man  is  by  nature,  potentially  at  least,  a 
moral  being,  and  the  social  state,  though  not  the 
creator  of  the  sense  of  ethical  obligation,  furnishes 
the  means  through  which  alone  is  presented  the 
possibility  of  its  concrete  application.  The  motive 
which  they  predicate  is  self-realization,  the  attain- 
ment of  that  personal  perfection  the  desire  for  the 
attainment  of  which  is  innate  in  man,  as  is  discov- 
erable by  a  metaphysical  inquiry  into  his  spiritual 
and  intellectual  nature,  and  his  relation  to  the 
Divine  or  Absolute  Reason. 

A  justification  of  a  right  of  control,  whether  by 
society,  the  State,  or  the  individual,  must  take  the 


236  SOCIAL   JUSTICE 

form  of  a  discussion  of  the  arguments  advanced  in 
support  of  these  two  positions  as  just  described. 

The  one  idea  that  none  of  us  can  get  away  from 
is  that,  abstractly  considered,  freedom  to  act  is 
preferable  to  coercion,  whether  actual  or  threatened. 
And  we  are  quite  right  in  this,  for  coercion,  or  a 
threat  of  a  penalty  which  amounts  to  coercion,  is 
necessarily  an  evil,  for  its  effect  is  to  hinder  the 
coerced  one  from  doing  that  which  he  otherwise 
would  have  desired  to  do ;  and  to  be  thwarted  in 
one's  desires  is  painful,  and  pain,  we  must  concede,  is 
an  evil.  Therefore  Fitzjames  Stephen  is  not  quite 
correct  when  he  says  that  to  ask  whether  freedom  be 
a  good  or  a  bad  thing,  without  first  stating  for  what 
purpose  it  is  to  be  used,  is  like  asking  whether  fire  is 
good  or  bad.^  Coercion,  whatever  may  be  its  ulti- 
mate effect,  is  in  its  immediate  application  produc- 
tive of  pain. 

Admitting  all  this,  however,  —  admitting  that 
coercion  necessarily  causes  pain,  and  that  pain  is  an 
evil,  —  we  may  still  ask  whether  pain  is  the  only  or 
the  greatest  evil.  Utilitarians  say  that  it  is.  If 
we  grant  this  to  be  so,  we  are  still  not  excluded 
from  the  possibility  of  justifying  the  right  of  a 
State  to  be.  For,  as  we  have  already  shown,  coer- 
cion, and  a  great  deal  of  it,  necessarily  exists  in  a 
non-civic  state.  If,  then,  it  be  shown,  as  of  course 
it  can  be,  that  a  given  political  power,  by  prevent- 
ing  individual   lawlessness,    lessens    coercion    by   a 

1  The  statement  is  made  somewhere  in  his  Liberty,  Equality, 
Fraternity. 


THE   EIGHT    OF    COERCION  237 

greater  amount  than  it  increases  it  by  exaction  of 
obedience  to  its  own  commands,  the  existence  of 
such  a  State,  viewing  it  as  a  whole,  and  from  a 
neutral  standpoint,^  is  justified  upon  purely  utilita- 
rian grounds. 

There  are,  however,  several  observations  to  be 
made  regarding  a  State  so  justified.  In  the  first 
place,  when  looked  at  in  this  light,  the  existence 
of  a  political  power  assumes  the  form  of  a  neces- 
sary evil,  and  as  such,  it  would  seem  that,  logi- 
cally, its  activities  should  be  kept  within  the 
narrowest  bounds  possible.  For  if  the  State's  coer- 
cion is  tolerated  only  because  it  prevents  a  greater 
private  coercion,  then  anything  that  goes  beyond 
this  purely  negative  function  will  add  to,  rather 
than  subtract  from,  the  aggregate  of  coercion  to 
which  the  citizen  is  subjected.  This  is  precisely  the 
position  we  find  Bentham  and  J.  S.  Mill  assuming.*^ 

Bentham  begins  by  defining  "liberty"  as  simply 
being  left  free  whether  to  do  good  or  evil.  Those 
who  declare  that  liberty  consists  merely  in  the  right 
of  doing  everything  which  is  not  injurious  to  another, 
he  says,  pervert  language ;  they  refuse  to  employ 
the  word  "  liberty  "  in  its  common  acceptation.  "  Is 
not  the  liberty  to  do  evil,  liberty  ? "  he  asks.  "If 
not,  what  is  it  ? "  Law,  therefore,  except  where 
merely  declaratory,  he  asserts,  is  necessarily  contrary 

^  This  qualification,  "  from  a  neutral  standpoint,"  is,  as  we  shall 
see,  important. 

^  Spencer  takes  practically  the  same  position,  but  founds  it  upon 
different  reasoning.  We  shall  have  occasion  to  consider  his  theories 
upon  this  point  in  our  next  chapter. 


238  SOCIAL  JUSTICE 

to  liberty.  And  he  continues :  "  But  every  restric- 
tion imposed  upon  liberty  is  subject  to  be  followed 
by  a  natural  sentiment  of  pain,  greater  or  less ;  and 
that  independently  of  an  infinite  variety  of  incon- 
veniences and  sufferings,  which  may  result  from  the 
particular  manner  of  this  restriction.  It  follows, 
then,  that  no  restriction  ought  to  be  imposed,  no 
power  conferred,  no  coercive  law  sanctioned,  without 
a  sufficient  and  specific  reason.  There  is  always  a 
reason  against  every  coercive  law  —  a  reason  which, 
in  default  of  any  opposing  reason,  will  always  be 
sufficient  in  itself ;  and  that  reason  is,  that  such  a 
law  is  an  absolute  attack  upon  liberty.  He  who 
proposes  a  coercive  law  ought  to  be  ready  to  prove, 
not  only  that  there  is  a  specific  reason  in  favor  of  it, 
but  that  this  reason  is  of  more  weight  than  the 
general  reason  against  every  such  law."  ^ 

Mill's  position  is  stated  in  his  essay  On  Liberty. 
After  justifying  the  existence  of  the  State  by  assert- 
ing that  "  all  that  makes  existence  valuable  to  any 
one  depends  on  the  enforcement  of  restraints  upon 
the  actions  of  other  people,"  he  says :  "  The  object 
of  this  essay  is  to  assert  one  very  simple  principle,  as 
entitled  to  govern  absolutely  the  dealings  of  society 
with  the  individual  in  the  way  of  compulsion  and 
control,  whether  the  means  used  be  physical  force  in 
the  form  of  legal  penalties,  or  the  moral  coercion 
of  public  opinion.  That  principle  is,  that  the  sole 
end  for  which  mankind  are  warranted,  individually 
or   collectively,  in    interfering   with   the   liberty  of 

^  Principles  of  the  Civil  Code,  p.  94. 


THE   RIGHT   OF   COERCION  239 

action  of  any  of  their  number,  is  self-protection. 
That  the  only  purpose  for  which  power  can  be  right- 
fully exercised  over  any  member  of  a  civilized  com- 
munity, against  his  will,  is  to  prevent  harm  to  others. 
His  own  good,  either  physical  or  moral,  is  not  a 
sufficient  warrant.  He  cannot  rightfully  be  com- 
pelled to  do  or  forbear  because  it  will  be  better  for 
him  to  do  so,  because  it  will  make  him  happier, 
because,  in  the  opinion  of  others,  to  do  so  would  be 
wise  or  even  right.  These  are  good  reasons  for 
remonstrating  with  him,  or  reasoning  with  him,  or 
persuading  him,  or  entreating  him,  but  not  for  com- 
pelling him,  or  visiting  him  with  any  evil  in  case  he 
do  otherwise.  To  justify  that,  the  conduct  from 
which  it  is  desired  to  deter  him  must  be  calculated 
to  produce  evil  to  some  one  else.  The  only  part  of 
the  conduct  of  any  one,  for  which  he  is  amenable  to 
society,  is  that  which  concerns  others.  In  the  part 
which  merely  concerns  himself,  his  independence  is, 
of  right,  absolute.  Over  himself,  over  his  own  body 
or  mind,  the  individual  is  sovereign."  ^ 

When  Mill  in  the  next  to  the  last  sentence  uses 
the  expression  "  of  right,"  he  is  of  course  not  refer- 
ring to  "  natural  right,"  for  this  idea  he  has,  or  at 
least  declares  that  he  has,  abandoned  as  invalid.  He 
must  therefore  mean,  of  right  as  determined  by  utili- 
tarian canons.  And  this  being  so,  his  conclusion 
that  what  concerns  wholly  the  individual  himself 
cannot  of  right  be  controlled  by  others,  must  be 
founded    on    the    assumption    that,    however    well 

^  Op.  ciL,  Chapter  L 


240  SOCIAL  JUSTICE 

wishing  this  coercing  power,  the  individual  is  the 
only  one  absolutely  qualified  to  determme  what  line 
of  conduct  will  produce  for  him  the  greatest  amount 
of  happiness.  This,  as  a  mere  matter  of  fact,  is 
very  doubtful.  That  an  individual  can  tell  for  him- 
self what  act  will  be  immediately  productive  of  the 
greatest  pleasure  may  possibly  be  true.  But  that  he 
can  determine  what,  remote  as  well  as  proximate 
consequences  being  considered,  will  be  the  relative 
happiness-producing  powers  of  different  modes  of 
life,  we  know  to  be  false,  as  our  conduct,  for  instance, 
in  relation  to  children  and  the  weak-minded  con- 
stantly proves.  Mill,  in  fact,  recognizes  this  himself, 
for  he  says  :  "  It  is,  perhaps,  hardly  necessary  to  say 
that  this  doctrine  is  meant  to  apply  only  to  human 
beings  in  the  maturity  of  their  faculties.  We  are 
not  speaking  of  children  or  of  young  persons  below 
the  age  which  the  law  may  fix  as  that  of  manhood 
or  womanhood."  Nor  does  it  apply,  he  says,  to  the 
backward  races.  "  Despotism,"  he  declares,  "  is  a 
legitimate  mode  of  government  in  dealing  with  bar- 
barians, provided  the  end  be  their  improvement  and 
the  means  justified  by  actually  effecting  that  end. 
Liberty,  as  a  principle,  has  no  application  to  any 
state  of  things  anterior  to  the  time  when  mankind 
have  become  capable  of  being  improved  by  free  and 
equal  discussion." 

Fitzjames  Stephen,  in  his  Liberty,  Equality,  Fra- 
ternity, is  quick  to  seize  upon  these  admissions  of 
Mill,  and  to  show  that,  in  making  them,  he  practi- 
cally yields  the  whole   question.      For,  as  Stephen 


THE   RIGHT   OF   COERCION  241 

points  out,  no  one  attempts  the  justification  of  coer- 
cion of  the  individual  for  the  sake  of  that  individual's 
pleasure  except  upon  the  ground  that  the  coercing 
power  is  wiser  than  the  coerced  one  as  to  what,  upon 
the  whole,  will  be  productive  of  the  greatest  good. 
This  superior  wisdom  appears  very  plainly  when  the 
parent  is  dealing  with  the  child,  or  a  highly  civilized 
race  with  a  barbaric  tribe.  But  that  differences  in 
sapience  exist  among  adults  of  the  same  community 
cannot  be  denied,  and  therefore,  according  to  the 
principle  necessarily  implied  in  the  admissions  made 
by  Mill,  coercion  is  justifiable  even  for  the  sole  pur- 
pose of  making  the  coerced  ones  better  or  happier. 
And,  as  regards  the  test  for  discretion  which  Mill 
gives,  namely,  capacity  for  improvement  by  free  and 
equal  discussion,  Stephen  asks  how  many  there  are, 
even  amongst  the  highest  of  civilized  peoples,  whose 
minds  are  fully  open  to  the  arguments  of  abstract 
reason. 

Then,  again,  there  is  that  objection  to  Mill's  prin- 
ciple which  consists  in  the  impossibility  of  determin- 
ing just  what  acts  are  wholly  self-regarding,  and 
therefore  to  be  withdrawn  from  the  social  or  political 
control.  As  a  matter  of  fact,  it  would  not  be  diffi- 
cult to  show  that,  in  our  complex  social  life,  so  inti- 
mately is  the  life  and  prosperity  of  one  individual 
connected  with  the  life  and  prosperity  of  all,  very 
few  overt  acts  are  without  theu'  social  significance. 
It  would,  therefore,  be  easily  possible,  acting  accord- 
ing to  the  very  principles  laid  down  by  Mill,  to 
defend  a  degree  of  state  interference  in  the  lives  of 


242  SOCIAL   JUSTICE 

the  citizens  far  beyond  that  which  the  world  has 
yet  known. 

We  have  not  yet,  however,  reached  the  vital  objec- 
tion to  the  utilitarian  justification  of  the  right  of 
social  or  political  control.  This  is  that,  as  a  matter 
of  fact,  the  theory  is,  when  judged  from  the  social 
standpoint,  i.e.  from  the  standpoint  of  the  coercing 
power,  absolutely  destructive  of  all  individual  liberty ; 
and,  when  considered  from  the  individual  standpoint, 
i.e.  from  the  standpoint  of  the  coerced,  incapable  of 
affording  any  valid  ethical  ground  whatever  for  the 
subordination  of  the  welfare  of  self  to  that  of  the 
whole. 

If  we  take  the  social  standpoint,  there  is  justified 
any  interference,  however  arbitrary  or  gross,  with  the 
freedom  of  the  particular  individual,  if  the  effect  of 
such  interference  is  to  increase  the  happiness  of  those 
not  coerced.  Utilitarians  have  made  strenuous  at- 
tempts to  bridge  the  chasm  between  altruism  and 
egoism,  but  without  success.  The  two  ideas  are  ge- 
nerically  distinct,  and  by  no  process  of  development 
can  the  one  be  made  to  lead  to  the  other.  The  whole 
discussion  is,  however,  one  that  cannot,  because  of 
its  length,  be  reproduced  here.  Nor  is  it  indeed 
necessary,  so  well  known  is  it  to  all  ethical  students. 

On  the  other  hand,  if  we  take  the  point  of  view  of 
the  individual,  it  justifies,  to  be  sure,  all  that  inter- 
ference with  the  freedom  of  others  which  is  necessary 
to  prevent  them  from  interfering  with  the  liberty  of 
the  individual  in  question ;  so  far  as  the  coercion  is 
directly  upon  him,  it  can  have  for  him  no  morally 


THE   RIGHT   OF    COERCION  243 

binding  force.  For  him,  in  other  words,  if  happiness 
be  the  test,  the  ideal  of  political  order  is  that  he  shall 
be  protected  against  others,  but  left  free  himself  to 
do  as  his  desires  dictate.  The  consequence  of  this  is 
that,  as  to  any  individual  citizen,  it  is  impossible, 
upon  a  utilitarian  basis,  to  erect  a  social  or  political 
control  of  a  morally  binding  character.  In  fact,  as 
we  believe,  all  those  realistic  systems  which  explain 
the  sense  of  moral  obligation  as  a  product  in  time  of 
an  evolutionary  process,  and  which  place  the  ultimate 
motive  of  ethical  conduct  upon  a  hedonistic  basis,  are 
incapable  of  explaining  the  origin  of,  or  of  finding  a 
proper  place  in  their  systems  for,  a  feeling  of  right- 
ness  in  any  true  sense  of  the  word.  Since  the  feeling 
of  pain  and  pleasure  can  be  felt  and  measured  as  to 
their  amount  only  by  the  individuals  experiencing 
them,  and  as  these  feelings  are  the  sole  criteria  of 
Tightness,  what  the  utilitarians  call  justice  is  logically 
reduced  to  a  purely  individualistic  basis.  Upon  such 
a  basis  it  is  absolutely  hopeless  to  attempt  the  erec- 
tion of  a  valid  system  of  social  or  political  right. 
The  supreme  good  must  be  conceived  as  an  aggregate 
of  individual  pleasures,  and  society  must  thus  appear 
as  nothing  more  than  an  aggregate  of  self-seeking 
beings,  each  of  whom  is  morally  entitled  to  subordi- 
nate the  good  of  others  or  of  the  whole  to  his  own 
good.  And  this  he  may  do  even  though  the  subor- 
dinated good  be  far  greater  than  the  selfish  gain 
secured.  Mill  and  a  few  others  who  have  followed 
him  have  attempted,  as  we  have  before  said,  to  deny 
this,  and  to  hold  that  the  social  good  is  of  a  higher 


244  SOCIAL   JUSTICE 

order  than  the  individual  good.  But  it  is  generally 
conceded  that  in  so  doing  he  and  they  have  intro- 
duced a  distinction  between  different  goods  as  to 
kind,  whereas  their  premises  permit  a  distinction 
only  as  to  amount. 

As  opposed  to  the  utilitarian  view,  the  idealistic 
or  transcendental  position  is  that  mere  happiness  is 
never  the  supreme  end  of  conduct.  The  supreme 
end  is  ever  the  realization  of  a  self  which  is  conceived 
as  rational  and  universal  —  as  a  partaker  in  that 
Divine  Reason  which  is  one  and  indivisible,  but 
which  manifests  itself  in  manifold  forms. 

The  central  concept  of  modern  ethics  is  thus  the 
moral  personality  of  man.  This  implies  that  each 
individual  is  able,  and  in  fact  is  irresistibly  im- 
pelled, to  formulate  for  himself  an  ideal  of  perfection 
toward  the  attainment  of  which  he  is  conscious  of  a 
moral  obligation  to  strive.  This  consciousness  of 
obligation  which  takes  the  form  of  a  categorical 
imperative  posited  by  his  own  reason,  carries  with 
it  the  logical  assumptions :  first,  of  a  freedom  of  the 
will,  for  without  this  there  would  not  be  even  the 
capacity  to  obey  the  obligation  which  is  felt;  and, 
secondly,  of  an  inherent  right  to  be  allowed  by  others 
to  realize  in  fact,  so  far  as  is  compatible  with  their 
reciprocal  rights,  those  conditions  of  life  which  are 
implied  in  the  ideal  of  personal  development  which 
each  frames  for  himself.  These  principles  are  summed 
up  by  Kant  in  the  two  canons :  "  Be  a  person  and 
respect  others  as  persons,"  and  "  Act  externally  in 
such  a  manner  that  the  free  exercise  of  thy  will  may 


THE   RIGHT    OF    COERCION  245 

be  able  to  coexist  with  the  freedom  of  others  accord- 
ing to  a  universal  law."  ^ 

In  declaring  the  chief  good  to  be  the  realization 
of  one's  best  self,  transcendental  ethics  necessarily 
distinguishes  between  those  simple  or  material  wants 
which  the  bodily  passions  and  appetites  create,  and 
those  desires  which  are  the  outcome  of  a  craving 
to  secure  that  moral  perfection  which  the  reason 
presents.  The  first  express  a  demand  for  the  satis- 
faction of  an  immediate  want,  without  reference  to, 
or  recognition  of,  any  ulterior  end  to  be  realized. 
The  second  are  the  outcome  of  the  developed  reason 
of  an  individual  who  is  conscious  that  he  is  a  moral 
being,  who  is  able  to  see  his  life  as  a  whole,  to 
conceive  of  a  possible  perfection,  and  thus  to  adapt 
means  to  its  attainment. 

This  is  the  point  which  Green  makes  when  he 
says :  "  The  reason  and  will  of  man  have  their 
common  ground  in  that  characteristic  of  being  an 
object  to  himself  which,  as  we  have  said,  belongs  to 
him  so  far  as  the  eternal  mind,  through  the  medium 
of  an  animal  organism  and  under  limitations  arising 
from  the  employment  of  such  a  medium,  reproduces 
itself  in  him.  It  is  in  virtue  of  this  self -objectifying 
principle  that  he  is  determined,  not  simply  by  natural 
wants  according  to  natural  laws,  but  by  the  thought 
of  himself  as  existing  under  certain  conditions,  and 
as  having  ends  that  may  be  attained  and  capabilities 
that  may  be  realized  under  those  conditions.  It  is 
thus  that  he  not  merely  desires,  but  seeks  to  satisfy 

'^Philosophy  of  Law,  translated  by  Hastie,  p.  46. 


246  SOCIAL  JUSTICE 

himself  in  gaining  the  objects  of  his  desire;  pre- 
sents to  himself  a  certain  possible  state  of  himself, 
which  in  the  gratification  of  his  desire  he  seeks  to 
reach :  in  short,  wills.  It  is  thus,  again,  that  he 
has  the  impulse  to  make  himself  what  he  has  the 
possibility  of  becoming  but  actually  is  not,  and  hence 
not  merely,  like  the  plant  or  animal,  undergoes  a 
process  of  development,  but  seeks  to,  and  does, 
develop  himself."  ^ 

Logically,  of  course,  our  argument,  if  it  would  be 
complete,  would  need  to  begin  by  demonstrating  the 
idealistic  assumptions  here  made  as  to  the  essential 
character  of  man,  his  participation  in  the  Divine  or 
Absolute  Reason,  and,  as  flowing  therefrom,  his 
power  of  velleity  and  actuation  by  motives  not 
ultimately  determined  by  objective  environment, 
—  the  elaboration,  in  short,  of  some  such  a  system 
as  T.  H.  Green  has  made  in  his  Prolegomena  to 
EtJiics.  But  in  this  work,  which  is  confessedly 
directed  to  the  solution  of  but  special  problems,  it 
is  allowable  to  assume  the  above  position  as  proven, 
and  thence  to  advance  to  the  establishment  of  a 
rational  system  of  political  right. 

Applying  now  our  idealistic  principles  to  the  sub- 
ject of  rights,  we  are  led,  as  was  seen  in  our  chapter 
on  "Justice,"  to  assert  that  rights  in  the  individual 
are  dependent  upon  the .  possession  of  a  capacity  and 
a  disposition  to  employ  them  for  the  attainment  of 
some  desirable  end.  Applying  them  to  the  subject 
of  political  control,  we  are  led  to  the  declaration  that 

"^Prolegomena  to  Ethics,  §  175. 


THE   RIGHT    OF   COERCION  247 

the  existence  of  a  State  is  justified,  as  to  each  one 
of  us,  in  so  far,  and  only  in  so  far,  as  it  tends  by  its 
activities  to  assist  in  developing  our  best  selves. 

It  may  appear  that  our  argument  has  brought  us 
around  to  that  very  utilitarian  basis  which  was  so 
expressly  disavowed  in  the  earlier  portion  of  this 
chapter.  This  may  be  so  in  effect  as  regards  the 
larger  number  of  the  actions  of  mankind ;  but  it  is 
not  so  as  regards  the  ethical  criteria  applied.  In 
essential  character,  this  theory  stands  poles  apart 
from  such  an  evaluation  of  results  as  is  implied  in 
utilitarianism  either  of  the  universal istic  or  the 
rationalistic  evolutionary  type.  The  one  expressly 
excludes  the  material  self-interest  of  the  critic  and 
demands  that  every  action  shall  be  judged  sub  specie 
ceternitatis,  that  is,  as  tested  by  a  principle  which 
may  rationally  be  universalized  as  a  rule  of  conduct ; 
the  other  avowedly  predicates  a  self-interest  —  albeit 
an  enlightened  one  —  as  the  real  determining  motive 
to  be  followed  by  the  agent.  Right  actions,  accord- 
ing to  the  one,  are  founded  ultimately  upon  eternal 
principles  of  morality  flowing  from  the  essential 
character  of  the  Divine  Reason ;  according  to  the 
other,  ethical  conduct  never  rises  to  a  higher  char- 
acter than  that  of  far-seeing  prudence.  The  ulti- 
mate aim  of  the  one  is  the  attainment,  so  far  as 
may  be,  to  a  likeness  unto  the  true  God ;  of  the 
other,  simply  a  more  perfect  adjustment  to  one's 
objective  environment.^ 

1  In  his  Data  of  Ethics  (§  105),  Spencer  outlines  his  social  ideal 
as  follows :  "  One  who  has  followed  the  general  argument  thus  far 


248  SOCIAL   JUSTICE 

From  what  has  been  said  it  will  be  seen  that 
modern  ethical  thought  makes  the  source  of  moral 
obligation  wholly  subjective.  It  denies  the  possi- 
bility of  an  objective  or  external  ground  of  obliga- 
tion of  any  sort  whatsoever.  What  obligation  the 
human  soul  feels  comes  from  the  recognition  of  what 
is  right.  When  we  discover  that  a  thing  is  right,  the 
sense  of  obligation  to  seek  it  is  given  to  us  as  an 
original  underived  feeling.  "  Moral  obligation  is 
the  soul's  response  to  acknowledged  rectitude."  ^ 

Starting  from  this  premise,  that  in  the  moral  field 
man  is  self-legislative  but  yet  determined  by  the  idea  of 
a  self-perfection,  it  is  possible  to  harmonize  absolutely 
the  ideas  of  freedom  and  control,  of  liberty  and  law. 
In  so  far  as  the  commands  of  a  social  or  political 
power   are   recognized   by   the   individual   as   being 

will  not  deny  that  an  ideal  society  may  be  conceived  as  so  constituted 
that  his  spontaneous  activities  are  congruous  with  the  conditions 
imposed  by  the  social  environment  formed  by  other  such  beings.  In 
many  places,  and  various  ways,  I  have  argued  that  conformably  with 
the  laws  of  evolution  in  general,  and  conformably  with  the  laws  of 
organization  in  particular,  there  has  been,  and  is,  in  progress  an 
adaptation  of  humanity  to  the  social  state,  changing  it  in  the  direc- 
tion of  such  an  ideal  congruity.  And  the  corollary  before  drawn  and 
here  repeated  is  that  the  ultimate  man  is  one  in  whom  this  process 
has  gone  so  far  as  to  produce  a  correspondence  between  all  the  prompt- 
ings of  his  nature  and  all  the  requirements  of  his  life  as  carried  on  in 
society.  If  so,  it  is  a  necessary  implication  that  there  exists  an  ideal 
code  of  conduct  formulating  the  behavior  of  the  completely  adapted 
man  in  the  completely  evolved  society.  Such  a  code  is  that  here  called 
Absolute  Ethics  as  distinguished  from  Relative  Ethics  —  a  code  the 
injunctions  of  which  are  alone  to  be  considered  as  absolutely  right  in 
contrast  with  those  that  are  relatively  right  or  least  wrong ;  and  which, 
as  a  system  of  ideal  conduct,  is  to  serve  as  a  standard  for  our  guidance 
in  solving,  as  well  as  we  can,  the  problems  of  real  conduct." 

^  President  J.  G.  Schurman,  in  the  Philosophical  Review,  article, 
"  The  Consciousness  of  Moral  Obligation." 


THE   EIGHT    OF    COERCION  249 

necessary  for  the  realization  of  his  own  best  good, 
which,  as  we  have  seen,  includes  the  good  of  others, 
such  commands  no  longer  appear  to  him  as  orders 
from  an  external  power  limiting  his  freedom,  but  as 
imperatives  addressed  to  himself  by  his  own  reason. 
In  obeying  them,  therefore,  he  obeys,  in  fact,  himself. 
In  theory,  then,  it  is  possible  to  conceive  of  a  society 
so  perfectly  organized  and  administered  that  at  the 
same  time  that  social  subordination  and  obedience 
is  demanded  and  obtained,  the  individuals  are  left 
absolutely  free  as  being  required  to  do  only  such 
acts  as  their  own  reason  tells  them  are  just.^ 

This  does  not  mean  that  the  individual  should  feel 
himself  morally  bound  to  obey  only  those  laws  which, 
taken  by  themselves,  he  considers  just.  As  we  have 
already  pointed  out,  in  refusing  obedience  to  a  law 
of  the  State,  or  indeed  to  a  social  convention  of 
any  sort,  he  must  recognize  that  such  law  or  conven- 
tion constitutes  an  integral  part  in  a  general  system 
of  rights,  and  therefore  that  a  violation  of  it  will 

^  "If  we  try  to  form  the  idea  of  a  divine  society  or  community  of 
men  —  and  by  a  divine  society,  I  mean  one  that  is  perfect  —  we  may, 
"without  incurring  the  reproach  of  manufacturing  a  iitopia,  say  this 
much  of  it.  It  must  liave  a  perfect  harmony  or  unity  of  all  its  mem- 
bers, and  a  perfect  variety  ;  and  the  more  intense  and  thorough  the  har- 
mony is,  the  more  so  must  the  variety  be.  A  perfect  society  would 
have  an  intense  oneness,  but  this  oneness  would  hold  amid  an  infinite 
variety  of  character  and  experience  on  the  part  of  its  individual 
.  members.  In  musical  art,  when  instruments  of  various  kinds  sound 
different  notes,  we  may  have  a  symphony  which  is  one  of  the  most 
magnificent  expressions  of  superpersonal  feeling  that  humanity  knows : 
such  would  be  the  harmony  of  a  perfect  society  and  such  is  the  dream 
of  the  world."  S.  H.  Mellone  in  the  International  Journal  of  Ethics, 
Vol.  VIII,  p.  73,  article,  "  Some  of  the  Leading  Ideas  of  Comte's 
Positivism." 


250  SOCIAL  JUSTICE 

tend,  not  simply  to  nullify  the  command  in  question, 
but  to  weaken  the  efficiency  of  the  whole  sys- 
tem. He  must  therefore  consider,  before  he  resists, 
whether  he  may  not  be  able  to  secure  an  annulment 
of  the  objectionable  rule  in  some  better  manner,  or, 
if  this  be  not  possible,  whether  it  will  not  be  prefer- 
able to  suffer  the  evil  rather  than  to  bring  about  the 
harm  which  a  resistance  to  it  will  produce.  Fur- 
thermore he  should  remember  that  (to  quote  Bosan- 
quet),  "  It  is  possible  for  us  to  acquiesce,  as  rational 
beings,  in  a  law  and  order  which  on  the  whole 
makes  for  the  possibility  of  asserting  our  true  or 
universal  selves,  at  the  very  moment  when  this  law 
and  order  is  constraining  our  particular  private  wills 
in  a  way  which  we  resent  or  even  condemn.  Such  a 
law  and  order,  maintained  by  force,  which  we  recog- 
nize as  on  the  whole  the  instrument  of  our  greatest 
self-affirmation,  is  a  system  of  rights ;  and  our  lib- 
erty, or  to  use  a  good  old  expression,  our  liberties, 
may  be  identified  with  such  a  system  considered  as 
the  condition  and  guarantee  of  our  becoming  the 
best  that  we  have  it  in  us  to  be,  that  is,  of  becom- 
ing ourselves.  And  because  such  an  order  is  the  em- 
bodiment up  to  a  certain  point  of  a  self  or  system  of 
will  which  we  recognize  as  what  ought  to  be,  as 
against  the  indolence,  ignorance,  or  rebellion  of  our 
casual  private  selves,  we  may  rightly  call  it  a  system 
of  self-government,  of  free  government;  a  system, 
that  is  to  say,  in  which  ourselves,  in  one  sense,  gov- 
ern ourselves  in  another  sense."  ^ 

1  The  Philosophical  Theory  of  the  State,  p.  127. 


THE   RIGHT   OF    COERCION  251 

In  result,  modern  political  ethics  advocates  a  sub- 
ordination of  the  individual  to  society  as  a  whole, 
but  does  so  in  such  a  way  as  not  to  abate  one  whit 
of  his  personality  or  freedom,  for  this  subordination 
is,  in  essence,  not  the  subordination  of  his  will  to  a 
higher  social  will,  but  the  identification  by  the  indi- 
vidual of  the  social  will  with  his  own  will,  so  that,  in 
obeying  the  social  or  political  will,  the  individual 
obeys  his  own  will  purified  from  selfishness. 

We  shall  be  able  to  bring  this  idea  of  obedience 
without  subordination  into  clearer  light  by  contrasting 
it  with  the  conceptions  of  political  right  which  it  has 
supplanted.  Looking  back  over  the  history  of  politi- 
cal thought,  we  find  that,  roughly  speaking,  the  rela- 
tion of  the  individual  to  the  State  has  been  viewed  in 
four  aspects.  These  we  may  designate  by  the  names, 
Oriental,  Hellenic,  Individualistic,  and  Modern. 

In  our  chapter  on  "  Justice  "  we  called  attention  to 
the  fact  that  Greek  ethical  thought  developed  the 
idea  of  an  abstract  natural  law  which  was  conceived 
to  stand  superior  to  human  law.  Logically,  as  we 
pointed  out,  this  idea  could  have  been  made  subver- 
sive of  all  political  authority.  It  did  not,  however, 
have  this  effect  in  Greece.  Paradoxical  as  it  may 
seem,  the  Hellenes  were  able  to  recognize  in  their 
political  philosophy  the  independent  value  of  human 
personality,  and  at  the  same  time  to  subject  the  citi- 
zen to  the  absolute  control  of  the  State.  According  to 
the  Hellenic  conception,  man  was  by  his  very  nature 
a  social  being.  Hence  his  life  in  a  state  of  society, 
with  its  social  conventions  and  demands,  meant,  not 


252  SOCIAL   JUSTICE 

an  interference  with  an  original  independence,  but  a 
condition  of  life  necessary  to  the  very  existence  of 
men  as  independent  rational  beings.  To  the  Greeks, 
in  other  words,  society  and  the  State  were  as  imme- 
diately products  of  great  nature  as  was  man  himself. 
The  State  had,  indeed,  in  their  eyes  a  higher  and  more 
perfect  individuality  and  personality  than  did  its  citi- 
zens, for  it  was  from  its  personality  and  from  its  life 
that  the  citizen  was  supposed  to  derive  all  that  was 
valuable  to  him  as  a  man.  This  apotheosis  of  the 
State  was  carried  to  such  a  degree  that  the  doctrine 
of  immortality,  so  far  as  it  was  developed  by  the 
Greeks,  was,  for  the  most  part,  made  applicable  only 
to  the  civic  personality.  It  is  this  fact  that  largely 
explains  why,  considering  the  high  development 
reached  by  philosophy  among  the  Greeks,  compara- 
tively so  little  discussion  centred  around  the  possi- 
bility or  probable  conditions  of  a  life  hereafter  for 
mankind.  The  State's  life  was  eternal,  and  man's 
highest  aim  was  conceived  to  be  the  contribution  of 
what  lay  within  his  power  to  render  that  life  as 
glorious  as  possible. 

The  consequence  of  this  was  that,  while  the  indi- 
vidual had  many  rights,  he  had  none  as  opposed  to 
the  State.  The  individual  was  as  completely  subor- 
dinated to  the  State  in  the  Hellenic  as  in  the  Oriental 
world.  There  was,  however,  this  fundamental  differ- 
ence. While  the  Oriental,  in  his  subjection  to  the  law 
and  to  the  State,  viewed  this  subordination  as  an 
obedience  to  an  external  power,  the  Greek  saw  in  it 
but  a  yielding  to  a  higher  self,  —  to  a  power  of  which 


THE    RIGHT    OF    COERCION  253 

the  citizens  were  themselves  parts.  What  in  the 
Oriental  world  was  subjection,  became  in  the  Greek 
world  self -surrender.  President  \Yheeler,  in  his  recent 
life  of  Alexander  the  Great,  states  the  distinction 
which  we  have  been  attempting  to  make,  in  the  fol- 
lowing manner :  "  To  the  Oriental,"  he  says,  "  the 
universe  as  well  as  the  State  is  conceived  of  as  a  vast 
despotism,  which  holds  in  its  keeping  the  source  and 
the  law  of  action  for  all.  Its  mysterious  law,  held 
beyond  the  reach  of  human  vision,  like  the  inscrutable 
will  of  the  autocrat,  is  the  law  of  fate.  Personality 
knew  no  right  of  origination  or  of  self-determination ; 
it  was  swept  like  a  ship  in  the  current.  It  knew  no 
privilege  except  to  bow  in  resignation  before  the 
unexplained,  unmoved  mandate  of  fate.  The  Ori- 
ental government  of  the  universe  was  transcendental ; 
the  Hellenic,  social."  ^ 

The  individualistic  phase  of  political  thought  was 
represented  in  the  philosophy  of  the  seventeenth  and 
eighteenth  centuries,  and  was  a  direct  outcome  of 
that  central  idea  of  the  Protestant  Reformation  ac- 
cording to  which  the  individual  is  given  the  right 
of  passing  final  judgments  as  to  the  meaning  of  the 
law.  It  is  true  that  Luther's  mission  was  to  declare 
simply  the  emancipation  of  man  from  the  dogmatic 
absolutism  of  the  Church,  but  in  doing  so  the  princi- 
ple was  necessarily  asserted  which  freed  him  from 
unquestioning  obedience  to  any  external  authority, 
political  or  ecclesiastical. 

This  freedom,  when  not  controlled  and  tempered 

1  Chapter  I. 


254  SOCIAL  JUSTICE 

by  a  proper  comprehension  of  the  rational  limitations 
under  which  it  should  be  exercised,  led,  as  is  well 
known,  to  a  gradual  denial  of  the  right  of  all  politi- 
cal authority  not  founded  on  the  assent  —  explicit 
or  implied  —  of  the  individuals  subject  to  it.  The 
movement,  in  effect,  assumed  the  form  of  a  simple 
negation  of  the  Oriental  idea  of  subjection,  and,  as 
all  pure  negations  are  apt  to  be,  was  carried  over 
into  the  opposite  extreme,  anarchy.  In  political 
theory  this  individualistic  philosophy  reached  its 
height  in  the  writings  of  the  French  philosophical 
school  of  the  latter  half  of  the  eighteenth  century. 
In  political  fact,  it  found  its  culmination  in  the 
anarchy  of  the  revolutionary  period. 

In  his  admirable  little  book  on  Hegel,  Professor 
Caird  has  stated  in  a  masterly  manner  the  essential 
thought  in  the  eighteenth  century  philosophy,  show- 
ing both  the  kernel  of  truth  that  it  contained,  and 
the  errors  involved  in  its  attempted  application. 

"  The  doctrine  that  nothing  ultimately  can  have 
truth  or  even  reality  for  man,"  says  Caird,  "  which 
is  not  capable  of  being  made  his  own  and  identified 
with  his  very  self,  might  be  understood  to  mean  that 
the  truth  of  things  is  at  once  revealed  to  the  unde- 
veloped consciousness  of  the  savage  or  of  the  child, 
and  that  the  immediate  desires  of  the  natural  man 
are  his  highest  law.  In  the  place  of  the  duty  of 
knowing  one's  self,  and  of  undergoing  all  the  hard 
discipline,  intellectual  and  moral,  which  is  necessary 
in  order  to  know,  might  be  put  an  assertion  of  the 
*  rights  of  private  judgment,'  which  was  equivalent 


THE   RIGHT   OF   COERCION  255 

to  the  proclamation  of  an  anarchy  of  individual 
opinion.  As  the  modern  struggle  for  emancipation 
went  on,  this  ambiguity  of  the  new  principle  began 
to  reveal  itself ;  and  the  claims  which  were  first 
made  for  the  '  spiritual  man/  i.e.  for  man  in  the  infi- 
nite possibilities  of  his  nature  as  a  rational  or  self- 
■conscious  being,  capable  of  an  intellectual  and  moral 
life  which  takes  him  out  of  himself,  and  even  of  a 
religious  experience  which  unites  him  to  the  infinite, 
were  asserted  on  behalf  of  the  '  natural  man/  i.e. 
of  man  conceived  merely  as  a  finite  individual  —  an 
atom  set  among  other  atoms  in  a  finite  world,  and 
incapable  of  going  beyond  it,  or  even  beyond  him- 
self, either  in  thought  or  action.  Hence  the  strange 
contradiction  which  we  find  in  the  literature  of  the 
eighteenth  century,  which  with  one  hand  exalts  the 
individual  almost  to  a  god,  while  with  the  other  it 
seems  to  strip  off  the  last  veil  that  hides  from  him 
that  he  is  a  beast.  The  practical  paradox,  that  the 
age  in  which  the  claims  of  humanity  were  most 
strongly  asserted,  is  also  the  age  in  which  human 
nature  was  reduced  to  its  lowest  terms,  —  that  the 
a,ge  of  tolerance,  philanthropy,  and  enlightenment, 
was  also  the  age  of  materialism,  individualism,  and 
scepticism,  —  is  explicable  only  if  we  remember  that 
both  equally  spring  out  of  the  negative  form  taken 
by  the  first  assertion  of  human  freedom. 

"  As  the  individual  thus  fell  back  upon  himself, 
throwing  off  all  relations  to  that  which  seemed  to  be 
external,  the  specific  religious  and  social  ideas  of 
earlier  days  lost  power  over  him ;    and  their  place 


256  SOCIAL  JUSTICE 

was  taken  by  the  abstract  idea  of  God  and  the  abstract 
idea  of  the  equality  and  fraternity  of  men  —  ideas 
which  seemed  to  be  higher  and  nobler  because  they 
were  more  general,  but  which  for  that  very  reason 
were  emptied  of  all  definite  meaning,  as  well  as  of 
all  vital  power  to  hold  in  check  the  lusts  and  greeds 
of  man's  lower  nature.  Thus  the  ambitious  but 
vague  proclamation  of  the  religion  of  nature  and  the 
rights  of  man  was  closely  associated  with  a  theor}^ 
which  reduced  man  to  a  mere  animal  individual,  a 
mere  subject  of  sensations  and  appetites,  incapable 
either  of  religion  or  of  morality.  For  an  ethics  which 
is  more  than  a  word,  and  a  religion  which  is  more 
than  an  aspiration,  imply  definite  relations  of  men  to 
each  other  and  to  God,  and  all  such  relations  were 
now  rejected  as  inconsistent  with  the  freedom  of  the 
individual.  The  French  Revolution  was  the  practi- 
cal demonstration  that  the  mere  general  idea  of 
religion  is  not  a  religion,  and  that  the  mere  general 
idea  of  a  social  unity  is  not  a  State,  but  that  such 
abstractions,  inspiring  as  they  may  be  as  weapons  of 
attack  upon  an  old  system,  leave  nothing  to  build  up 
the  new  one,  except  the  unchained  passions  in  the 
natural  man."  ^ 

In  a  certain  sense,  modern  ethics  appears  to  dis- 
tinguish between  a  higher  and  a  lower  self.  We  say 
"appears  to  distinguish,"  for  in  fact  but  one  true  self 
is  recognized,  and,  strictly  speaking,  there  can  be  no 
such  thing  as  a  will  striving  against  itself.  Never- 
theless, it  is  possible  for  the  requirements  of  a  truly 

1  Op.  ciU,  pp.  19-20. 


THE   RIGHT   OF    COERCION  257 

moral  life  to  conflict  at  times  with  immediate  mate- 
rial desires,  and  in  selecting  the  former  for  satis- 
faction, there  does  occur  what  may  properly  be 
termed  a  struggle  between  our  higher  and  lower 
natures. 

Surprising  as  it  may  seem,  it  was  first  in  the  writ- 
ings of  J.  J.  Rousseau  that  we  find  this  modern  doc- 
trine of  a  true  or  higher  self  as  opposed  to  the 
untrue  or  lower  self,  a  "  real "  will  as  opposed  to  an 
apparent  will,  attempting  to  break  forth.  In  his 
earlier  essays,  to  be  sure,  Rousseau  exalts  the  "  natu- 
ral man,"  but  in  his  Social  Contract  there  is  clearly 
apparent  the  idea  of  a  true  human  liberty  that  is 
higher  and  better  than  the  license  of  the  savage ; 
and  in  his  volonte  generate  we  have  the  conception  of 
a  will  more  real  than  that  expressed  by  the  momen- 
tary or  selfish  inclination  of  the  individual. 

Thus,  in  speaking  of  benefits  to  be  derived  by  the 
establishment  of  a  civil  State  properly  administered, 
he  says :  "  The  passage  from  the  state  of  nature  to 
the  civil  State  produces  in  man  a  very  remarkable 
change,  by  substituting  in  his  conduct  justice  for 
interest,  and  giving  to  his  actions  a  moral  force  which 
they  lacked  before.  Then  only  does  the  voice  of 
duty  succeed  to  physical  impulse,  and  law  to  appetite, 
and  man,  who  until  then  had  thought  only  of  himself, 
sees  himself  forced  to  act  upon  other  principles,  and 
to  consult  his  reason  before  listening  to  his  desires. 
.  .  .  There  ought  to  be  added  to  the  credit  side  of 
the  civil  State,  that  of  moral  liberty,  which  alone 
renders  man  master  of  himself ;  for  the  impulse  of 


258  SOCIAL  JUSTICE 

one  appetite  is  slavery,  and  obedience  to  self-pre- 
scribed law  is  liberty."  ^ 

From  the  above  it  is  clearly  apparent  that  the 
real  meaning  at  the  bottom  of  Rousseau's  thought, 
when  he  says  that  man  is  born  free,  is  that  he  is 
born  for  freedom.  And  when  he  says  that,  in  fact, 
men  are  everywhere  in  chains,  he  means,  not  that 
this  is  a  necessary  result  of  the  civil  State,  but  of  a 
civil  State  wrongly  established  and  administered.^ 
This  idea  of  a  distinction  between  a  real  and  a 
casual  will  appears  again,  where  Rousseau  makes 
the  point  that  it  is  possible  for  the  volonte  generale 
to  stand  in  opposition  to  the  individual  will.  This 
opposition,  he  declares,  is,  however,  not  real,  but 
comes  from  the  individual  having  mistaken  what 
his  real  will  is,  that  is,  from  his  having  interpreted 
a  casual  or  selfish  desire  as  representing  his  real 
interest.  The  volonte  generale  represents  his  real 
will,  and  hence  in  being  compelled  to  yield  to  it, 
the  individual  is  really,  as  Rousseau  says,  "forced 
to  be  free." 

The  error  of  Rousseau's  reasoning  appears  when 
he  declares  that  it  is  possible  to  determine  this  real 
will  of  the  individual  as  a  volonte  generale,  and  to 
ascertain  this  volonte  generale  by  such  a  mechanical 
means  as  a  plebiscite.  Rousseau  recognizes,  to  be 
sure,  that  there  is  a  difference  between  the  volonte 
generale  and  the  volonte  de   tons,  in  that  the   one 

1  Book  II,  Chapter  VIII. 

^  Bosanquet  in  his  recent  work,  The  Philosophical  Theory  of  the 
State,  makes  this  point  very  plain.     See  especially  Chapter  IV. 


THE   RIGHT   OF   COERCION  259 

regards  the  common  interest,  and  the  other  private 
interests ;  but  he  thinks  that  the  former  can  be 
derived  from  the  latter  by  setting  off  individual 
differences  against  one  another.  "  Take,"  he  says, 
^'from  these  same  wills  the  plus  and  the  minus, 
which  destroy  each  other,  and  there  will  remain 
for  the  sum   of  the   differences  the   general  will."^ 

In  the  political  philosophy  of  Kant,  Rousseau's 
mechanical  idea  of  a  volonte  generate  disappears,  and 
is  replaced  by  the  truer  conception  of  a  real  will  as 
dependent  upon  the  reason  of  man  when  purified 
from  all  desire.  There  thus  becomes  explicit  in 
Kant  the  idea  of  the  morally  self-legislative  char- 
acter of  man.  Man's  conduct,  then,  as  conceived 
by  Kant,  so  far  from  being  lawless,  is  limited  by 
those  conditions  which  the  reason  imposes,  and  the 
chief  among  them  is  the  principle  before  mentioned 
that  all  individuals  should  be  treated  as  persons,  and 
consequently  that  all  acts  should  be  such  as  can 
rationally  be  made  a  canon  of  conduct  for  all  men. 
Thus  Kant  defines  right  as  comprehending  "  the 
whole  of  the  conditions  under  which  the  voluntary 
actions  of  any  one  person  can  be  harmonized  in 
reality  with  the  voluntary  actions  of  every  other 
person,  according  to  a  universal  law  of  freedom."  '^ 

Kant  had  not,  however,  emancipated  himself  from 
the  individualistic  philosophy  of  the  eighteenth  cen- 
tury. He  did  not  grasp  the  fundamental  truth  that 
the  individual  can,  by  recognizing  the  justice  of  the 

1  Op.  cit.,  Book  II,  Chapter  III. 

^  Philosophy  of  Law,  Hastie  translation,  p.  45. 


260  SOCIAL   JUSTICE 

will  of  another  power,  make  that  will  his  very  own, 
and  thus,  though  obeying  it,  be  not  coerced  by  it. 
He  thus,  in  fact,  ever  regards  the  control  of  the  law 
as  necessarily  an  interference  with  freedom,  and  jus- 
tifiable only  when  employed  to  prevent  coercion 
from  other  sources.  He  develops,  therefore,  the 
pure  conception  of  a  Hechtsstaat,  —  a  State  whose 
sole  legitimate  function  is  to  prevent  the  violations 
of  those  principles  of  rights  which  the  reason  lays 
down  as  fundamental.  The  State  is  thus  dragged 
in,  as  it  were,  as  a  deus  ex  macliina  to  secure  to 
men  that  freedom  to  which  they  are  rationally 
entitled,  but  which  without  the  State  they  could 
not  obtain,^ 

The  true  view  which,  while  recognizing  the  two 
necessary  elements  of  self  and  not  self,  of  liberty 
and  law,  yet  harmonizes  them  in  a  higher  unity 
without  destroying  them,  is  first  found  stated  in  the 

1  Caird  in  his  monumental  work,  The  Critical  Philosophy  of  Kant, 
has  set  forth  in  a  masterly  manner  the  inconsistencies  in  the  political 
reasoning  of  Kant.  We  are  inclined  to  think,  however,  that  in  doing 
so  Caird  has  himself  erred  in  giving  to  the  social  concept  a  too  inde- 
pendent dignity.  At  times  he  speaks  of  the  society  as  being  more 
than  a  means  for  the  realization  of  the  good  of  its  constituent  indi- 
viduals. Thus  he  says  in  one  place  :  "  If,  however,  it  is  admitted  that 
a  relation  of  persons  may  be  established,  in  which  they  are  not  as  ends 
exclusive  of  each  other,  or  in  which  each,  as  so  exclusive,  is  only  a 
means,  the  strict  opposition  of  things  and  persons,  means  and  ends, 
disappears  in  a  higher  category.  We  pass,  so  to  speak,  from  the 
external  teleology  of  mere  design  to  the  higher  teleology  of  organic 
iinity.  .  .  .  Under  this  new  category,  it  becomes  possible  to  under- 
stand that  man  can  be  an  end,  only  as  he  is  a  member  of  a  kingdom 
of  ends,  to  which  he  makes  himself  a  means,  just  as  a  member  of  the 
physical  body  maintains  itself  by  the  very  activity  in  which  it  sub- 
serves the  whole  organism."  It  seems  to  us  that  this  position  is  open 
to  criticism.     See  our  next  chapter. 


THE   RIGHT   OF    COERCION  261 

philosophy  of  Hegel.  Here  the  old  Greek  idea  is 
revived,  but  corrected  by  rendering  that  subordina- 
tion, which  to  the  Greek  was  an  unthinking  and 
almost  instinctive  submission,  a  conscious,  deliber- 
ately chosen  subordination.  The  Greek  failed  to 
reach  the  true  view  because  he  recognized  but  the 
one  element,  the  will  of  the  State.  His  thought  in- 
volved no  recognition  of  the  two  necessary  elements 
of  freedom  and  authority.  In  other  words,  his  iden- 
tification of  the  individual  will  with  the  will  of  the 
State  was  immediate. 

In  the  modern  view,  on  the  other  hand,  the  identi- 
fication is  mediate.  The  two  ideas  of  absolute  free- 
dom and  absolute  subjection  are  first  clearly  presented 
to  the  mind  and  then  harmonized.^  Thus,  while  still 
retaining  the  central  conception  of  the  "  good  will," 
the  abstract  and  impossible  Kantian  formalism  of  that 
will  is  denied.  In  its  place  there  is  given  us  the  con- 
ception of  a  self  that  finds  its  realization  in  the  outer 
world,  in  utilizing  objective  forces  and  institutions  as 
means  for  securing  that  development  and  perfection 
which  the  reason  declares.  The  existence  of  the 
State  thus,  as  comprehending  the  most  important  of 
all  those  forces  and  facts  which  are  necessary  for 
man's  highest  life,  receives  the  highest  possible 
sanction.  Thus  Hegel  speaks  of  the  State  as  the 
"actualization  of  freedom,"^  and  as  the  ^'embodi- 
ment of  concrete  freedom."  ^ 

^  Cf.  Caird's  "  Hegel,"  in  Blackwood's  Philosophical  Classics,  Chap- 
ter II. 

2  Philosophy  of  Right,  translated  by  Dyde,  §  258  addition. 
8  Idem,  §  260. 


262  SOCIAL  JUSTICE 

"  In  this  concrete  freedom,"  says  Hegel,  "  personal 
individuality  and  its  particular  interests,  as  found 
in  the  family  and  civic  community,  have  their  com- 
plete development.  In  this  concrete  freedom,  too, 
the  rig]its  of  personal  individuality  receive  adequate 
recognition.  These  interests  and  rights  pass  partly 
of  their  own  accord  into  the  interest  of  the  indi- 
vidual. Partly,  also,  do  the  individuals  recognize 
by  their  own  knowledge  and  will  the  universal  as 
their  own  substantive  spirit,  and  work  for  it  as  their 
own  end.  Hence,  neither  is  the  universal  completed 
without  the  assistance  of  the  particular  interest, 
knowledge,  and  will ;  nor,  on  the  other  hand,  do 
individuals,  as  private  persons,  live  merely  for  their 
own  special  concern.  They  regard  the  general  end, 
and  are,  in  all  their  activities,  conscious  of  this  end. 
The  modern  State  has  enormous  strength  and  depth, 
in  that  it  allows  the  principle  of  subjectivity  to  com- 
plete itself  to  an  independent  extreme  of  personal 
particularity,  and  yet  at  the  same  time  brings  it 
back  into  the  substantive  unity,  and  thus  preserves 
particularity  in  the  principles  of  the  State.  .  .  . 

"  In  the  republics  of  classical  antiquity,  universality, 
it  is  true,  is  to  be  found.  But  in  those  ages  particu- 
larity had  not  as  yet  been  released  from  its  fetters, 
and  led  back  to  the  universality  or  the  universal 
purpose  of  the  whole.  The  essence  of  the  modern 
State  binds  together  the  universal  and  the  full  free- 
dom of  particularity,  including  the  welfare  of  indi- 
viduals. It  insists  that  the  interests  of  the  family 
and  the  civic  community  shall  link  themselves  to  the 


THE   RIGHT   OF   COERCION  263 

State,  and  yet  is  aware  that  the  universal  purpose 
can  make  no  advance  without  the  private  knowl- 
edge and  will  of  a  particularity  which  must  adhere 
to  its  right.  The  universal  must  be  actively  fur- 
thered, but,  on  the  other  side,  subjectivity  must  be 
wholly  and  vitally  developed.  Only  when  both 
elements  are  present  in  force  is  the  State  to  be 
regarded  as  articulate  and  truly  organized."  ^ 

The  Proper  Sphere  of  Coercion.  —  The  position  to 
assume  upon  this  point  is  very  clearly  pointed  out 
in  the  discussion  that  has  been  had  as  to  justification 
of  coercion  in  general.  If,  as  we  have  shown,  there 
are  properly  speaking  no  abstract  rights  in  the  indi- 
vidual which  are  by  their  very  nature  withdrawn 
from  rightful  control,  it  follows  that  utility  —  inter- 
preted, of  course,  in  its  highest  ethical  sense  —  should 
determine  when  coercion  should  be  applied. 

Thus  far  the  discussion  has  been  limited  to  the 
question  of  the  rightfulness  of  political  restraint.  The 
same  arguments,  however,  apply  with  equal  force  to 
all  forms  of  social  control,  whether  exercised  through 
the  State,  the  family,  the  church,  or  merely  through 
social  disapprobation.  In  each  case  the  influence 
exerted  may  only  be  justified,  as  regards  the  person 
exerting  it,  if  it  be  consciously  intended  to  be  for  the 
ultimate  best  of  the  person  controlled  or  of  mankind 
at  large.  As  regards  the  one  controlled,  it  may  be 
acquiesced  in  as  just  only  in  so  far  as  that  one  can 
himself  perceive  in  it  such  a  tendency ;  and  the  same 
is  true  as  regards  the  disinterested  critic. 

1  Op.  cit.,  §  260  and  addition. 


264  SOCIAL   JUSTICE 

Of  course  the  conditions  under  which  state  coer- 
cion may  be  applied  differ  widely  from  those  under 
which  compulsion  may  be  employed  by  society  in  the 
form  of  public  opinion,  or  by  the  individual  by  a 
withdrawal  of  his  friendship  or  financial  help,  but 
the  motives  in  all  three  cases  must  be,  if  they  would 
be  ethically  valid,  the  same.  Fitzjames  Stephen 
has  formulated  the  following  conditions  that  must  be 
satisfied  in  order  to  justify  any  form  of  compulsion, 
and  which,  when  satisfied,  do  positively  require  it. 
These  are :  (1)  that  the  object  aimed  at  be  desira- 
ble, (2)  that  the  means  employed  be  calculated  to 
obtain  it,  (3)  and  at  not  too  great  an  expense.^  "We 
accept  his  position  upon  this  point  as  absolutely 
valid. 

At  first  thought  this  may  seem  to  justify  intoler- 
ance in  matters  usually  considered  beyond  the  right 
of  control  —  religious  belief  and  ceremonial,  for 
example.     Let  us  see  if  this  be  so. 

There  is  no  one  who  would  maintain  that  we 
should  recognize  toleration  as  an  absolute  duty ;  that 
is,  one  to  be  exercised  as  to  all  persons  and  as  to  all 
acts.  There  are  always  some  acts  that  we  will  not 
tolerate,  even  if  performed  in  the  name  of  religion. 
What,  then,  is  the  logical  ground  upon  which  we 
justify  intolerance  in  such  cases,  and  tolerance  in  all 
others  ?  If  we  are  convinced  that  a  certain  line  of 
conduct  will  be  for  the  best  interest  of  another,  and 
if  we  can  by  some  means  make  that  other  adopt  that 
policy  without  at  the  same  time  doing  him  a  greater 

^  In  his  Liberty,  Equality,  Fraternity. 


THE   RIGHT   OF   COERCION  265 

evil  than  benefit,  is  it  not  really  a  kindness  to  him 
to  do  so  ?  If  we  are  firmly  convinced,  for  example, 
that  the  failure  to  accept  a  certain  doctrine  will  doom 
the  recusant  to  an  eternity  of  awful  torment,  and  if 
we  are  equally  sure  that  coercion  will  be  able  to 
secure  the  saving  acceptance,  and  without  causing 
an  amount  of  suffering  anywhere  near  as  great  as 
that  from  which  the  coerced  one  is  to  be  rescued,  can 
we  hesitate  to  declare  that  such  coercion  should  be 
applied  ?  Have  we  not,  in  fact,  abandoned  intoler- 
ance, where  we  have  abandoned  it,  either  because  we 
have  changed  our  minds  either  as  to  the  desirability  of 
the  end  sought,  or  our  faith  in  the  efficiency  of  com- 
pulsion to  reach  it,  or  to  reach  it  at  a  not  dispropor- 
tionate expense  ? 

In  taking  this  ground  we  emphasize  the  fact  that 
coercion  being  in  itself  painful,  the  one  exercising  it 
is  morally  bound  first  to  convince  himself  that  the 
conditions  that  we  have  mentioned  are  certainly 
present.  No  one  is  justified  in  intolerance,  however 
slight,  until  he  has  informed  himself  by  all  means 
within  his  power  as  to  the  rightfulness  of  his  opinion, 
and  until  he  has  taken  into  careful  consideration  all 
the  effects,  immediate  and  remote,  of  an  exercise  of 
coercion  on  his  part.  When  such  conditions  are 
strictly  observed  it  will  be  found,  we  think,  that 
the  doctrine  will  secure  a  considerably  greater  toler- 
ance, individual,  social,  and  political,  than  now 
actually  obtains  in  any  modern   society. 

The  bearing  which  the  discussion  that  has  gone 
before  has  upon  the  proper  attitude  of  the  so-called 


266  SOCIAL   JUSTICE 

higher  nations  to  the  lower,  less  civilized  races,  is 
obvious.  It  can  not  but  be  held  that,  just  as  there 
is  a  duty  on  the  part  of  a  parent  or  guardian  to 
educate,  even  with  the  collateral  use  of  compulsion 
if  necessary,  the  undeveloped  faculties  of  the  child, 
so  it  lies  within  the  legitimate  province  of  an 
enlightened  nation  to  compel  —  if  compulsion  be  the 
only  and  the  best  means  available  —  the  less  civil- 
ized races  to  enter  into  that  better  social  and  political 
life  the  advantages  of  which  their  own  ignorance 
either  prevents  them  from  seeing,  or  securing  if  seen. 
There  must  be  emphasized,  however,  the  conditions 
under  which  alone  the  assumption  of  such  a  task  by  a 
superior  nation  is  justifiable.  In  the  first  place  the 
motive  must  be  an  absolutely  disinterested  one.  The 
work  must  be  undertaken  because  of  the  advantage 
which  will  accrue  to  the  coerced  race,  or  to  humanity. 
The  possibility  of  incidental  advantages  to  the  supe- 
rior race  is  not  excluded,  but  cannot  properly  furnish 
the  motive.  In  the  second  place  the  superior  nation 
should  be  absolutely  sure,  not  simply  that  the  civiliza- 
tion which  it  is  endeavoring  to  impress  upon  the  infe- 
rior nation  is  intrinsically  better  than  that  which  it 
is  to  supplant,  but  that  it  will  be  better  as  related  to 
the  peculiar  needs  and  characteristics  of  the  people 
in  question.  Finally  it  should  be  made  manifest  that 
the  desired  results  can  better  be  obtained  by  compul- 
sion than  by  any  other  mode.  In  this  connection 
there  must  be  taken  into  consideration  all  possible 
consequences,  proximate  and  remote,  not  only  as 
regards  the  nations   immediately  concerned,  but  as 


THE   EIGHT    OF    COERCION  267 

regards  the  fact  that  a  compulsion  conscientiously 
undertaken  by  one  nation  may  furnish  a  pretext  or 
alleged  precedent  for  a  "  criminal  aggression  "  on  the 
part  of  a  less  conscientious  people.  Bearing  in  mind 
these  qualifications,  we  may  accept  the  language  of 
Professor  Burgess  when  he  says  :  — 

"  No  one  can  question  that  it  is  in  the  interest  of 
the  world's  best  civilization  that  law  and  order  and 
the  true  liberty  consistent  therewith  shall  reign 
everywhere  upon  the  globe.  A  permanent  inability 
on  the  part  of  any  State  or  semi-State  to  secure  this 
status  is  a  threat  to  civilization  everywhere.  Both 
for  the  sake  of  the  half-barbarous  State  and  in  the 
interest  of  the  rest  of  the  world,  a  State  or  States, 
endowed  with  the  capacity  for  political  organization, 
may  righteously  assume  sovereignty  over  and  under- 
take to  create  state  order  for,  such  a  politically  incom- 
petent population.  The  civilized  States  should  not, 
of  course,  act  with  undue  haste  in  seizing  power, 
and  they  should  never  exercise  the  power,  once 
assumed,  for  any  other  purpose  than  that  for  which 
the  assumption  may  be  righteously  made,  viz.  for  the 
civilization  of  the  subjected  population ;  but  they  are 
under  no  obligation  to  await  invitation  from  those 
claiming  power  and  government  in  the  insufficient 
organization,  nor  from  those  subject  to  the  same. 
The  civilized  States  themselves  are  the  best  organs 
which  have  yet  appeared  in  the  history  of  the  world 
for  determining  the  proper  time  and  occasion  for  inter- 
vening in  the  affairs  of  the  unorganized  or  insuffi- 
ciently organized   populations,  for  the  execution  of 


268  SOCIAL   JUSTICE 

their  great  world-duty.  Indifference  on  the  part  of 
the  Teutonic  States  to  the  political  civilization  of  the 
rest  of  the  world  is,  then,  not  only  mistaken  policy, 
but  disregard  of  duty,  and  mistaken  policy  because 
disregard  of  duty.  In  the  study  of  general  political 
science  we  must  be  able  to  find  a  standpoint  from 
which  the  harmony  of  duty  and  policy  may  appear. 
History  and  ethnology  offer  us  this  elevated  ground, 
and  they  teach  us  that  the  Teutonic  nations  are  the 
political  nations  of  the  modern  era;  that,  in  the 
economy  of  history,  the  duty  has  fallen  upon  them 
of  organizing  the  world  politically ;  and  that,  if 
true  to  their  mission,  they  must  follow  the  line  of 
this  duty  as  one  of  their  chief  practical  policies."  ^ 

^  Political  Science  and  Comparative  Constitutional  Law,  Vol.  I,  p.  47 
(published  in  1893). 


CHAPTER   IX 

THE   ETHICS    OF    THE    COMPETITIVE   PKOCESS 

The  result  of  the  argument,  as  carried  on  in  the 
preceding  chapter,  has  been  to  show  that  no  absolute 
or  a  priori  principle  can  be  established  regarding  the 
proper  sphere  of  social  or  political  control,  but  that 
in  every  case  conditions  of  fact  should  govern.  It 
has  been  alleged  by  some,  however,  that,  starting 
from  such  a  purely  empiric  basis,  it  can  be  estab- 
lished as  a  general  principle  that  the  coercive  power 
of  the  State  should  be  kept  within  the  closest  limits 
possible.  It  is  asserted,  in  short,  that  this  is  the 
lesson  taught  by  a  study  of  the  conditions  of  life 
generally  in  the  biological  world.  In  the  sub-human 
world,  it  is  said,  continued  progress  and  development 
have  been  rendered  possible  solely  by  the  fact  that 
individuals  have  been  forced  to  bear  the  consequences 
which  necessarily  come  from  unrestricted  competition 
with  the  members  of  their  own  and  other  species. 
By  a  like  competitive  process,  it  is  argued,  the  im- 
provement of  the  human  race  may  best  be  secured. 
The  present  chapter  will  be  devoted  to  a  considera- 
tion of  the  validity  of  this  position. 

The  chief  exponent  of  this  theory  is  Mr.  Herbert 
Spencer.     The  latest  and  probably  final  statement  of 

269 


270  SOCIAL   JUSTICE 

his  views  is  to  be  found  in  his  work,  Justice,  which 
constitutes  Part  IV  of  his  Principles  of  Ethics} 

As  is  well  known,  Mr.  Spencer  is  a  defender  of  the 
theory  that  the  evolutionary  process  lias  been  able, 
not  only  to  develop  the  feeling  of  moral  obligation, 
but  to  bring  about  its  very  creation  from  materials 
which  did  not  originally  contain  it  even  in  germ. 
The  illogicalness  of  such  a  position  would  seem  suffi- 
ciently obvious,  but  is  somewhat  explained  when  we 
consider  the  essential  character  which  Mr.  Spencer 
ascribes  to  the  ethical  idea.  "  Most  people  [he  says] 
regard  the  subject  of  ethics  as  being  conduct  consid- 
ered as  calling  forth  approbation  or  reprobation.  But 
the  primary  subject-matter  of  ethics  is  conduct  con- 
sidered objectively  as  producing  good  or  bad  results 
to  self  or  others,  or  both."  ^     Acting  upon  such  a  con- 

^  In  addition  to  the  support  claimed  to  be  derived  from  the  empiric 
facts  of  biological  evolution,  Mr.  Spencer,  positivist  though  he  be, 
relies  also  upon  a  bald  doctrine  of  abstract  natural  rights.  In  that 
chapter  of  his  Justice  which  is  devoted  to  the  establishment  of  the 
authority  of  the  individualistic  formula  which  he  has  obtained,  he 
avowedly  rests  it  upon  an  a  priori  ground,  and  calls  to  his  support  the 
dicta  of  such  men  as  Blackstone  and  Mackintosh,  wherein  they  have 
declared  the  supreme,  invariable,  and  all-controlling  power  of  natural 
law.  Spencer  closes  with  the  truly  remarkable  argument  that  "  pay- 
ing some  respect  to  these  dicta  (to  which  I  may  add  that  of  the 
German  jurists  with  their  Naturrecht)  does  not  imply  unreasoning 
credulity.  We  may  reasonably  suspect  that,  however  much  they  may 
be  in  form  open  to  criticism,  they  are  true  in  essence."  This  is  truly 
an  argument  reinai'kable,  not  only  because  of  the  method  of  demon- 
stration involved,  but  because  of  the  total  misconception  involved  as 
to  the  connotation  of  the  term  ^^ Naturrecht"  in  German  jurisprudence^ 
Mr.  Spencer  goes  on,  however,  to  assign  a  special  and  limited  charac- 
ter to  a  priori  beliefs  in  general,  but  in  this  we  need  not  follow  him^ 
as  we  shall  presently  cover  this  point  when  we  examine  Mr.  Spencer's 
system  from  a  different  standpoint. 

^  Justice,  p.  3. 


THE    ETHICS    OF   THE   COMPETITIVE   PROCESS        271 

ception  as  this,  it  is,  of  course,  comparatively  easy 
for  him  to  treat  human  justice  as  but  an  outgrowth 
from  animal  or  sub-human  conduct. 

Within  this  lower  world  of  life  it  is  undoubtedly 
true  that  development  has  been  an  outcome  of  a 
competitive  regime  in  which  those  less  fit,  as  related 
to  their  environment,  have  been  destroyed,  and  those 
more  fit,  in  the  same  sense,  have  survived  and  been 
enabled  to  transmit  their  favorable  characteristics  to 
their  offspring,  and  thus  the  gradual  evolution  of 
higher,  more  complex,  and  better  integrated  species 
rendered  possible.  It  is  also  true  that  this  weeding 
process  has  been  the  result  of  an  order  in  which  each 
individual  has,  in  the  main,  had  visited  upon  it  the 
natural  effect  of  its  own  nature  and  consequent  con- 
duct. It  is  to  be  observed,  however,  that,  in  order 
to  secure  the  efficiency  of  the  evolutionary  process, 
there  has  been  demanded  the  birth  of  a  vastly  greater 
number  of  individuals  than  can  by  any  possibility 
live  lives  of  natural  length.  In  other  words,  in 
order  to  secure  the  requisite  favorable  variations, 
and  to  obtain  the  needed  intensity  of  competition, 
many  are  called  into  life,  while  but  few  are  chosen 
for  a  life  sufficiently  long  to  enable  them  to  produce 
offspring.  The  development  of  the  species  has  thus 
ever  been  at  the  expense  of  the  great  majority  of  the 
individuals  constituting  it.  As  to  this,  Mr.  Spencer 
says :  "  The  species  has  no  existence  save  as  an 
aggregate  of  individuals,  and  it  is  true  that,  there- 
fore, the  welfare  of  the  species  is  an  end  to  be  sub- 
served only  as  subserving  the  welfares  of  individuals. 


272  SOCIAL   JUSTICE 

.  .  .  But  [he  continues]  since  the  disappearance  of 
the  species,  implying  disappearance  of  all  individu- 
als, involves  absolute  failure  of  achieving  the  end, 
whereas  disappearance  of  individuals,  though  carried 
to  a  great  extent,  may  leave  outstanding  such  num- 
ber as  can,  by  the  continuance  of  the  species,  make 
subsequent  fulfilment  of  the  end  possible ;  the  pres- 
ervation of  the  individual  must,  in  a  variable  degree, 
according  to  circumstances,  be  subordinated  to  the 
preservation  of  the  species,  where  the  two  conflict."^ 
Coming  now  to  human  life,  Mr.  Spencer,  finding 
in  it  no  elements  not  embraced  in  sub-human  life, 
applies  as  necessary  to  human  development  the  law 
stated  above,  that  upon  each  individual  should  be 
visited  the  natural  results  of  his  own  nature,  as 
judged  by  the  degree  of  his  adaptation  to  the  de- 
mands of  his  environment.  This  law,  he  declares, 
is  one  not  simply  of  fact,  but  of  moral  (as  he  under- 
stands moral)  obligation.  It  becomes,  in  fact,  at 
once  a  law  of  necessity  (if  there  would  be  human 
evolution)  and  a  canon  of  distributive  justice.  Mr. 
Spencer  therefore  holds  that  any  interference  on  the 
part  of  man  with  the  principle  which  this  law  de- 
clares, is  not  only  unwise,  but  immoral.  He  holds, 
however,  that  there  is  an  important  modification  in 
form,  if  not  in  character,  of  the  principle  in  its  appli- 
cation to  men,  resulting  from  the  gradual  recognition 
by  men,  due  to  their  increasing  intellectuality,  that, 
in  order  to  give  this  beneficent  law  the  fullest  free- 
dom of  operation,  each  individual  should  recognize  in 

1  Op.  ciL,  p.  6. 


THE    ETHICS    OF   THE   COMPETITIVE   PROCESS        273 

others  the  right  to  the  same  unimpeded  activity 
which  he  claims  for  himself. 

Furthermore,  he  says,  the  developing  intelligence 
of  men  leads  to  the  conscious  recognition  both  of  the 
utilitarian  basis  upon  which  this  rule  is  founded,  and 
to  an  acceptance  of  its  essentially  obligatory  char- 
acter. In  other  words,  although  the  principle  of  dis- 
tributive justice  obtains  full  sway  among  sub-human 
species,  it  is  not  recognized  as  doing  so  in  the  minds 
of  those  over  whose  destinies  it  exercises  a  control. 
Only  among  men  does  the  objective  operation  of  the 
rule  result  in  the  formation  of  a  corresponding  sub- 
jective feeling  that  it  is  right  that  the  individual 
should  submit  to  the  conditions  of  his  natural  beinsr 
and  to  the  requirements  of  his  natural  environment, 
in  order  that  the  ultimate  good  of  his  species  may  be 
subserved,  and  that  it  is  proper  that  he  should 
restrain  his  desires  where  their  satisfaction  will 
imply  an  undue  interference  with  the  freedom  of 
action  of  others. 

"  The  dread  of  retaliation,  the  dread  of  social  dis- 
like, the  dread  of  legal  punishment,  and  the  dread  of 
divine  vengeance,  united  in  various  proportions,  form 
a  body  of  feeling  which  checks  the  primitive  tendency 
to  pursue  the  objects  of  desire  without  regard  to  the 
interests  of  fellow-men.  Containing  none  of  the 
altruistic  sentiment  of  justice,  properly  so  called, 
pro-altruistic  sentiment  of  justice  serves  temporarily 
to  cause  respect  for  one  another's  claims,  and  so  to 
make  social  cooperation  possible."  ^ 

1  Op.  cit.,  p.  30. 


274  SOCIAL   JUSTICE 

This  sentiment,  thus  produced,  in  time  becomes  so 
firmly  grounded  in  the  consciousness  of  men  that  it 
is  ultimately  mistaken,  as  Mr.  Spencer  alleges,  for  an 
innate  feeling.  Such,  indeed,  he  holds  to  be  the 
essential  character  of  all  supposedly  innate  or  a  priori 
beliefs.^ 

From  the  premises  and  argument  which  we  have 
stated  it  is  easily  seen  how  Mr.  Spencer  is  led  to  the 
statement  of  a  doctrine  of  the  proper  duties  of  the 
State,  which  limits  them  to  the  simple  police  function 
of  protecting  life,  liberty,  and  property.  For,  as  he 
conceives  it,  any  political  control  necessarily  checks 
pro  tanto  the  beneficent  operation  of  competition. 

It  will  be  seen  that  in  this  system  which  we  have 
outlined  the  competitive  regime  among  men  is 
defended  upon  both  economic  and  ethical  grounds. 
As  regards  the  manner  in  which  the  personal  sense 
of  moral  obligation  is  declared  to  have  arisen,  we 
cannot,  of  course,  give  our  assent.  We  do  not 
believe  it  possible  to  create,  by  means  of  the  evolu- 
tionary process,  a  product  the  elements  of  which  are 
not  conceived  to  have  been  present  in  the  material 
from  which  it  is  supposed  to  have  evolved.  We  do 
not  hold  it  possible,  either  by  means  of  individual  or 
race  experience,  to  evolve  a  true  altruistic  sentiment 
out  of  originally  selfish  feelings.  Nor  do  we  hold  it 
a  logical  sequitur  that,  because  a  certain  law  of  devel- 
opment is  discovered  to  govern  the  growth  of  sen- 

1  "  One  who  accepts  the  doctrine  of  evolution  is  obliged,  if  he  is 
consistent,  to  admit  that  a  priori  beliefs  entertained  by  men  at  large 
must  have  arisen,  if  not  from  the  experiences  of  each  individual,  then 
from  the  experiences  of  the  race."  —  Spencer,  op.  cit.,  p.  55. 


THE  ETHICS   OF   THE   COMPETITIVE  PROCESS        275 

tient  beings,  therefore  it  is  a  law  which  should  or 
ought  to  govern.  But  this  is  obviously  not  the  place 
for  a  criticism  of  such  a  view.  We  shall,  however, 
have  occasion  later  on  to  show  that,  even  apart  from 
these  matters,  the  system  of  political  ethics  advocated 
by  Mr.  Spencer  exhibits  characteristics  which  can  be 
squared  neither  with  his  own  nor  with  any  other 
principles  of  right  and  justice. 

In  order  to  arrive  at  his  individualistic  results  Mr. 
Spencer  impliedly  maintains  the  following  assertions: 
first,  that  a  regime  of  practically  unrestricted  compe- 
tition between  sub-human  individuals  is  necessary  for, 
and  in  fact  does  always  lead  to,  the  improvement  of 
their  species  ;  second,  that  in  this  process  the  interest 
of  the  individual  may  ruthlessly  be  subordinated  to 
that  of  the  species ;  third,  that  what  is  true  of  sub- 
human species  is  equally  true  of  human  beings. 
These  assertions  are  necessarily  implied  in  the  posi- 
tion taken  by  Mr.  Spencer,  although  in  fact  he  has 
not  proved  or  attempted  to  prove  the  truth  of  all  of 
them. 

As  regards  the  first  assertion,  all  that  evolutionary 
biologists  have  shown  is  that,  as  a  matter  of  fact,  a 
fierce  struggle  for  existence  is  waged  between  indi- 
viduals of  the  sub-human  species,  and  that  the  out- 
come of  this  has  been  the  gradual  development  of 
more  complex  and  better  integrated  types  of  life. 
But  this  does  not  preclude  the  possibility  of  an  evo- 
lution by  other  and  perhaps  better  means,  unless, 
indeed,  it  should  be  held  that  such  a  suggestion 
would   impugn  the  wisdom  or  the  goodness  of   the 


276  SOCIAL  JUSTICE 

Creator,  a  plea  Mr.  Spencer  could  hardly  be  supposed 
as  willing  to  advance.  As  a  matter  of  fact,  moreover, 
as  has  been  shown  in  the  case  of  domesticated  animals, 
purposive  sexual  selection,  in  the  absence  of  competi- 
tion, is  a  far  more  rapid  and  effective  agent  of  im- 
provement than  the  elimination  of  the  unfit  in  a 
struggle  for  existence. 

Again,  as  qualifying  the  effect  of  Mr.  Spencer's 
first  assertion,  the  connotations  of  the  terms  "  evolu- 
tion "  and  "  fittest  for  survival,"  as  used  by  the  biolo- 
gist, are  to  be  examined.  When  this  is  done  it  is 
found  that  "  evolution "  is  not  necessarily  synony- 
mous with  progress  or  improvement  in  any  broad  or 
ethical  sense  ;  and  that  the  "  fitness  "  implied  in  the 
latter  phrase  has  also  a  peculiar  and  limited  meaning. 

In  the  struggle  for  existence,  in  the  biologic  sense, 
survival  is  a  demonstration  only  of  adaptation  to 
environment,  and  as  a  necessary  consequence,  the 
real  character  of  this  fitness  is  wholly  determined  by 
the  nature  of  the  environment.  As  Professor  Huxley 
has  said  in  his  now  famous  Romanes  Lecture :  "  In 
cosmic  nature  what  is  fittest  depends  upon  the  condi- 
tions. ...  If  our  hemisphere  were  to  cool  again, 
the  survival  of  the  fittest  might  bring  about  in 
the  vegetable  kingdom  a  population  of  more  and 
more  stunted  and  humbler  and  humbler  organisms, 
until  the  fittest  that  survived  might  be  nothing  but 
lichens,  diatoms,  and  such  microscopic  organisms  as 
those  which  give  red  snow  its  color;  while,  if  it 
became  hotter,  the  pleasant  valleys  of  the  Thames 
and  Isis  might   be  uninhabitable  by  any  animated 


THE   ETHICS    OF   THE   COMPETITIVE   PROCESS        277 

beings  save  those  that  flourish  in  a  tropical  jungle. 
They,  as  the  fittest,  the  best  adapted  to  changed  con- 
ditions, would  survive."  ^ 

In  truth,  the  very  conditions  of  an  unrestricted, 
unthinking  struggle  for  life  between  individuals  ren- 
der impossible  the  survival  of  exceptionally  developed 
types.  Where,  as  a  result  of  an  exceptional  varia- 
tion, an  individual  differs  radically  from  its  kind, 
this  very  difference,  albeit  one  indicating  develop- 
ment, is  a  disadvantage  to  it,  as  rendering  it,  as  it 
were,  out  of  rafpjyort  with  its  environment.  Thus 
the  effect  of  competition  everywhere  observable  in 
the  sub-human  world  is  the  prevention  of  maximum 
development,  and  the  maintenance  in  its  stead  of  a 
comparatively  low  level  of  life.  The  process  is  thus 
much  like  the  slow  advance  of  a  line  of  men  in  battle. 
Those  who  rush  ahead  are  the  first  killed  by  the 
enemy. 

As  regards  the  truth  of  that  second  assertion 
which  we  have  stated  to  be  implicit  in  Mr.  Spencer's 
theory,  namely,  that  the  interests  and  even  the  ex- 
istence of  the  individual  may  rightfully  be  subordi- 
nated to  the  welfare  of  the  species,  a  positive  denial 
must  be  entered,  so  far  at  least  as  regards  its  appli- 
cation to  man.  In  the  manner  in  which  this  demand 
is  made  by  Mr.  Spencer,  such  a  sacrifice  can  be  justi- 
fied according  to  neither  transcendental  nor  utilitarian 
systems  of  ethics.  For  if,  as  the  transcendentalist 
holds,  man  is  a  partaker  in  the  Divine  Reason,  and 
his  moral  consciousness  is  therefore  a  partial  mani- 

1  "  Evolution  and  Ethics,"  Collected  Essays,  Vol.  IX. 


278  SOCIAL  JUSTICE 

festation,  as  it  were,  of  the  World  Spirit,  he  has 
moral  rights  and  duties  as  such,  and  is  thus  dis- 
tinguished from  a  thing.  And  this  being  so,  it  is 
ethically  improper  to  treat  the  individual  simply  as 
a  means  to  an  end,  even  though  that  end  be  the 
welfare  of  his  race.  This,  of  course,  does  not  mean 
that  the  social  welfare  should  under  no  circumstances 
be  preferred  to  the  individual's  good,  but  only  that 
when  one  individual,  or  society  at  large,  assumes  to 
control  the  actions  or  destinies  of  other  individuals, 
the  motive  should  be  one  in  which  there  is  involved 
the  recognition  that  those  other  individuals  are  per- 
sons, not  things ;  that  they,  each  of  them,  are  ends 
unto  themselves,  and  therefore  that  the  action  to  be 
taken  can  only  be  justified  if  the  object  sought  to 
be  realized  is  one  which  those  individuals  would 
themselves  recognize  to  be  a  desirable  one  if  they 
were  to  reason  regarding  it  intelligently  and  im- 
partially. It  is  true  that  in  many  cases  where 
social  coercion  may  justly  be  applied,  the  coerced 
one  may  not  admit  its  rightfulness  or  submit  will- 
ingly to  its  operation.  In  such  a  conflict  superior 
might  finally  determines  the  issue.  But  if  the  com- 
pelled one  be  honest  and  intelligent  according  to  his 
opportunities,  he  cannot  be  said  to  be  immoral  in  his 
resistance ;  nor,  on  the  other  hand,  if  the  action  of 
the  superior  force  has  been  controlled  by  the  prin- 
ciple just  stated,  can  its  conduct  be  condemned.  In 
a  society  of  individuals  ethically  and  intellectually 
perfect  no  such  conflicts  would  occur.  The  control- 
ling power  would  demand  no  sacrifices  which  could 


THE  ETHICS   OF   THE  COMPETITIVE   PROCESS        279 

not  be  ethically  justified,  and  no  individual  would 
resist  the  enforcement  of  a  control  which  he  could 
see  to  be  wise  and  proper. 

It  scarcely  need  be  said  that  such  a  subordination 
of  the  individual  to  society  as  this  has  no  essential 
points  of  resemblance  to  that  subjection  of  the  indi- 
vidual to  the  welfare  of  its  species  which  is  implied 
in  the  biologic  laws  of  "  struggle  for  existence  "  and 
"  survival  of  the  fittest."  The  sacrifice  demanded 
by  these  laws  is  ruthless,  largely  indiscriminate, 
and  wholly  selfish.  So  far  as  the  process  can  be 
termed  teleological,  its  sole  aim  is  the  improvement 
of  the  species,  and  the  means  employed  one  which 
contains  no  asking  or  possible  granting  of  consent  on 
the  part  of  the  individual  victims.  According  to  its 
principles  the  absolute  annulment  of  every  right  of 
an  indefinite  number  of  individuals  is  justified  if 
only  the  ultimate  preservation  of  the  species  be  pro- 
moted. According  to  the  transcendentalist  principle 
not  the  smallest  demand  may  rightfully  be  made  of 
a  single  person  if  this  be  the  manner  of,  and  the 
sole  motive  for,  making  it. 

Nor  can  the  subordination  of  the  welfare  of  the 
individual  to  that  of  the  species  which  is  seen  in 
the  evolutionary  process  be  defended  upon  a  basis  of 
utilitarian  ethics.  If,  as  Mr.  Spencer  and  his  school 
hold,  utility  be  the  determining  criterion  of  rightful- 
ness, then  a  sense  of  moral  obligation  cannot  be 
conceived  to  exist  except  when  the  individual  to  be 
obligated  himself  recognizes  the  utility  of  the  act 
demanded.     If  then,  in  any  instance,  the  individual 


280  SOCIAL  JUSTICE 

should  assert,  as  indeed  almost  all  individuals,  if 
questioned,  would  assert,  that  he  considers  the  wel- 
fare of  future  generations  of  less  value  to  him  than 
his  own  welfare  or  life,  we  cannot  demand  that  such 
a  one  should  feel  morally  obligated  to  obey  the  given 
behest.  In  case  of  refusal  it  might,  upon  utilitarian 
grounds,  be  justifiable  for  society  at  large  to  coerce 
him,  but  it  could  not  judge  him  morally  recalcitrant, 
nor  could  the  victim  feel  otherwise  than  oppressed. 
Inasmuch,  therefore,  as  in  the  unrestricted  struggle 
for  existence  it  is  the  nine-tenths  that  are  sub- 
merged in  order  that  the  one-tenth  shall  survive, 
the  evolutionary  system  must,  upon  utilitarian 
grounds,  be  oppressive  and  irrational  to  the  great 
majority  of  the  individuals  affected  by  it. 

This  is  precisely  the  point  seized  upon  by  Benjamin 
Kidd  in  his  book.  Social  Evolution.  Building  in  the 
main  upon  Spencerian  premises,  Kidd  declares  that 
when  that  process  of  development  which  is  helplessly 
and  unthinkingly  submitted  to  by  the  brute  creation 
is  examined  in  the  light  of  men's  reason,  it  is  seen  to 
be,  as  to  the  majority  of  individuals,  an  essentially 
irrational  one.  The  reason  why  men  have  not  long 
ago  sought  to  end  this  destructive  competition  has 
been  due,  he  declares,  to  the  fact  that  religion  has 
supplied  super-rational  or  irrational  sanctions  to  sus- 
tain social  subordination.  There  are  inherent  defects 
in  Mr.  Kidd's  argument,  both  as  to  the  rational,  or 
rather  the  irrational,  character  of  all  religious  beliefs, 
and  as  to  that  absolute  hostility  of  the  interests  of 
the  individual  to  those   of   society  which  he  states 


THE   ETHICS    OF   THE   COMPETITIVE   PEOCESS        281 

in  the  broadest  manner  possible.  Of  these  we  will 
speak  later.  But  certainly  Mr.  Kicld's  theory  that, 
from  the  standpoint  of  the  individual,  the  simple 
biologic  process  of  evolution  cannot  be  defended 
upon  utilitarian  grounds,  is  correct. 

As  regards  the  third  implied  assumption  of  Mr. 
Spencer,  that  an  unrestricted  struggle  for  existence 
is  as  beneficent  among  human  races  as  among  sub- 
human species,  the  objections  that  may  be  urged  are 
so  numerous  as  to  render  difficult  their  treatment 
within  the  compass  of  a  single  chapter.  The  gist  of 
them  all  is,  however,  contained  in  the  two  follow- 
ing statements  of  fact :  First,  that  it  is  the  general 
desire,  as  well  as  the  true  duty,  of  man  not  simply 
to  live,  but  to  live  well.  Second,  that  man  as  a 
rational  being  has  the  ability  to  modify  his  rela- 
tion to  his  environment,  either  by  consciously 
adapting  his  manner  of  life  to  it,  or  by  altering 
its  conditions. 

The  first  truth  has  been  well  stated  by  President 
Schurman  in  a  review  of  Mr.  Spencer's  Justice  in  the 
Philosophical  Review.  "  The  receipt,"  says  President 
Schurman,  "  of  the  natural  consequences  of  an  indi- 
vidual's nature,  active  or  quiescent,  wherein  Mr. 
Spencer  discovers  the  essence  of  justice,  seems  to  me 
to  be  neither  just  nor  unjust,  neither  right  nor  wrong, 
neither  moral  nor  immoral.  No  doubt  this  process 
has  made  the  later  generations  of  animals  stronger, 
more  cunning,  and  better  adapted  to  the  environment 
than  the  earlier  generations.  And  were  we  aiming 
at  a  similar  improvement  in  the  breed  of  man,  we 


282  SOCIAL  JUSTICE 

might  perhaps  not  be  able  to  do  better  than  let  the 
process  of  natural  selection  go  on  undisturbed.  In 
that  case  we  should  have  no  charities  for  the  poor, 
no  hospitals  for  the  sick,  no  protection  for  the  weak 
and  helpless.  If  the  goal  be  the  superiority  of  future 
generations,  let  the  least  forward  varieties  be  elimi- 
nated. But  there  is  no  reason  or  excuse  for  such 
consequences  when  it  is  recognized  that  the  concep- 
tion of  human  welfare  as  ethical  end  implies,  first  of 
all,  the  well-being  of  existing  humanity,  each  member 
of  which  is  to  be  treated  as  an  end  in  himself,  never 
as  a  mere  means  to  other  ends,  and  then,  secondarily, 
the  welfare  of  future  humanity — but  only  in  so  far 
as  is  compatible  with  the  just  claims  of  every  living 
child  of  man.  Mr.  Spencer's  moralization  of  natural 
selection  is  not  demanded  by  an  ethical  system  which 
places  the  supreme  end  in  the  welfare  of  the  species, 
nor  is  it  in  itself  inherently  defensible.  In  the  con- 
tention that  the  biological  law  '  possesses  the  highest 
possible  authority,'  because  it  records  the  process  fol- 
lowed in  the  maintenance  and  evolution  of  life,  it 
must  be  replied  that  even  if  this  circumstance  in- 
vested it  with  '  authority,' — as  it  does  not, —  natural 
selection,  when  it  reaches  the  plane  of  rational  life, 
is  subordinated  to  the  higher  principle  of  human 
sympathy  and  sociality,  which  is  the  tap-root  alike  of 
morality  and  of  the  organized  community  in  which 
it  is  realized.  Ethics,  accordingly,  carries  us  into  a 
sphere — not  merely  of  living,  but  of  living  well — in 
which  the  biological  formula  is  without  application."  ^ 

iVol.  I,  No.l. 


THE    ETHICS   OF   THE   COMPETITIVE   PROCESS        283 

In  other  words,  with  the  advent  of  rational,  self-con- 
scious, moral  man,  the  aims  of  life  are  so  changed  as 
to  render  inappropriate  that  process  of  development 
which  is  efficient  in  the  lower  animal  world.  With 
self-consciousness  comes  the  appreciation  on  the  part 
of  the  individual  of  the  possibility  of  a  personal  per- 
fection, the  formation  in  idea  of  a  happier  and  better 
life  than  a  mere  animal  existence.  Whether  the 
formation  of  such  an  ideal  be  the  result  of  a  divine 
afflatus  or  the  effect  of  race  experience,  its  existence 
is  undeniable. 

In  the  light,  then,  of  this  new  conception,  the  term 
"fit  for  survival"  assumes  a  new  significance.  Fit- 
ness now  means  ethical  fitness.  As  has  been  said  by 
another  of  Mr.  Spencer's  critics,  social  progress  thus 
becomes  a  progress  "  the  end  of  which  is  not  the  sur- 
vival of  those  who  may  happen  to  be  the  fittest  in 
respect  of  the  whole  of  the  conditions  which  obtain, 
but  of  those  who  are  ethically  the  best."  ^  When, 
now,  to  this  ethical  element,  contributed  by  self-con- 
sciousness, we  add  the  cognitive  factor  of  reason, 
which  suggests  the  possibility,  as  well  as  the  means, 
by  which  man  may  take  active  steps  to  realize  his 
new  desires,  we  render  almost  self-evident  the  princi- 
]ile  that  should  govern  both  individual  and  social 
action.  This  is,  in  short,  that  the  slower  and  more 
expensive  method  of  structural  development  by 
means  of  the  biologic  law  should  be  supplanted  by 
a  process  devised  by  the  intellect  of  man,  in  which 
the  operation  of  the  former  law  is  checked  where 

^  Huxley,  Evolution  and  Ethics. 


284  SOCIAL   JUSTICE 

it  is  seen  to  lead  to  evil  or  to  entail  an  unnecessary 
amount  of  waste  and  suffering. 

Professor  Huxley  in  the  address  from  which  we 
have  already  quoted  has  elaborated  this  principle 
with  great  clearness.  "  Men  in  society,"  he  says, 
"are  undoubtedly  subject  to  the  cosmic  process.  As 
among  other  animals,  multiplication  goes  on  without 
cessation,  and  involves  severe  competition  for  the 
means  of  support.  The  struggle  for  existence  tends 
to  eliminate  those  less  fitted  to  adapt  themselves  to 
the  circumstances  of  their  existence ;  the  strongest, 
the  most  self-assertive,  tend  to  break  down  the 
weaker.  But  the  influence  of  the  cosmic  process  on 
the  evolution  of  society  is  the  greater  the  more  rudi- 
mentary its  civilization.  Social  progress  means  a 
checking  of  the  cosmic  process  at  every  step  and  the 
substitution  for  it  of  another,  which  may  be  called 
the  ethical  process ;  the  end  of  which  is  not  the  sur- 
vival of  those  who  may  happen  to  be  the  fittest,  in 
respect  of  the  whole  of  the  conditions  which  obtain, 
but  of  those  who  are  ethically  the  best."  And  he 
continues :  "  The  practice  of  that  which  is  ethically 
best — what  we  call  goodness  or  virtue — involves  a 
course  of  conduct  which  in  all  respects  is  opposed  to 
that  which  leads  to  success  in  the  cosmic  struggle  for 
existence.  In  place  of  ruthless  self-assertion  it  de- 
mands self-restraint;  in  place  of  thrusting  aside  or 
treading  down  all  competitors,  it  requires  that  the 
individual  shall  not  merely  respect  but  shall  help  his 
fellows ;  its  influence  is  directed  not  so  much  to  the 
survival  of  the  fittest  as  to  the  fitting  of  as  many  as 


THE   ETHICS    OF    THE   COMPETITIVE   PROCESS        285 

possible  to  survive.  .  .  .  Laws  and  moral  precepts 
are  directed  to  the  end  of  curbing  the  cosmic  process 
and  reminding  the  individual  of  his  duty  to  the  com- 
munity, to  the  protection  and  influence  of  which  he 
owes,  if  not  existence  itself,  at  least  the  life  of  some- 
thing better  than  a  brutal  savage." 

While  the  main  conclusions  reached  by  Huxley  in 
his  Romanes  address  have  received  very  general 
acceptance,  two  more  or  less  technical  criticisms  have 
been  made  upon  his  mode  of  stating  them.  It  has 
been  questioned,  in  the  first  place,  whether  he  has 
not  distinguished  too  sharply  between  the  ethical  and 
cosmic  processes.  In  the  quotations  which  we  have 
made  it  is  seen  that  apparently  he  makes  the  two 
processes  mutually  exclusive  and  antagonistic.  But 
it  may  be  asked.  However  much  the  ethical  process 
may  differ  from  the  competitive  process  which  pre- 
vails among  the  beings  of  lower  creation,  does  not 
the  former,  as  much  as  the  latter,  constitute  a  part 
of  the  general  cosmic  process  ;  and  does  not,  in  truth, 
an  adequate  connotation  of  the  term  "  cosmic  pro- 
cess "  comprehend  all  stages  and  methods  of  phenom- 
enal development  —  a  development  which,  however, 
may  assume  one  form  in  the  sub-human  sphere  and 
another  in  the  human  world  ? 

Undoubtedly  an  affirmative  answer  must  be  given 
to  this  question,  as  no  doubt  Huxley  himself  would 
agree.  In  fact,  though  some  of  his  expressions  would 
point  otherwise,  we  may  in  justice  doubt  whether 
he  was  in  his  address  even  temporarily  led  to  think 
otherwise.     It  has  been  pointed  out  that  Mr.  Huxley 


286  SOCIAL   JUSTICE 

may  have  been  consciously  using,  for  the  time  beings 
the  language  of  the  unscientific,  and  the  quotation 
from  Seneca  with  which  he  prefaces  his  paper,  Soleo 
enim  et  in  aliena  castra  transire,  non  tanquam  trans- 
fug  a  sed  tanquam  explorator,  may  indicate  this.' 
Moreover,  we  have,  in  the  Prolegomena  which  Mr. 
Huxley  has  prefixed  to  his  address,  the  virtual  admis- 
sion of  the  point.  In  comparing  the  progress  of 
plants  under  artificial  and  under  natural  selection,  he 
saj^s,  "  Thus  it  is  not  only  true  that  the  cosmic 
energy,  working  through  man  upon  a  portion  of  the 
plant  world,  opposes  the  same  energy  as  it  works 
throughout  the  state  of  nature,  but  a  similar  antago- 
nism is  everywhere  manifest  between  the  artificial 
and  the  natural."  And  in  a  note  he  adds :  "  Or,  to 
put  the  case  still  more  simply :  When  a  man  lays 
hold  of  the  two  ends  of  a  piece  of  string  and  pulls 
them  with  intent  to  break  it,  the  right  arm  is  cer- 
tainly exerted  in  antagonism  to  the  left  arm ;  yet 
both  arms  derive  their  energy  from  the  same  original 
source." 

This  is  satisfactory  so  far  as  it  goes,  as  admit- 
ting or  showing  that  the  processes  of  life  and 
development  which  go  on  in  the  human  and  sub- 
human spheres  constitute  parts  of  one  general 
cosmic  scheme  ;  but  the  implication  is  still  left  that 
the  so-called  ethical  process  is  both  essentially  different 
from,  and  antagonistic  to,  that  process  which  is  dis- 
played in  the  lower  realms  of  life.  And  this  leads 
to  the  second  general  question  regarding  Mr.  Hux- 

^  By  Miss  White,  International  Journal  of  Ethics,  Vol.  V,  p.  478. 


THE   ETHICS    OF   THE   COMPETITIVE   PROCESS        287 

ley's  position.  This  is  whether  the  ethical  process 
does  in  fact  have,  either  for  its  aim  or  its  result,  a 
cessation  of  the  competitive  principle ;  and  whether, 
therefore,  the  ethical  principle  does  in  fact  differ  in 
kind  from  the  evolutionary  principles  of  "  struggle 
for  existence "  and  "  survival  of  the  fittest."  In 
other  words,  cannot  we  take  Mr.  Huxley's  homely 
example,  and  say  that  though,  to  be  sure,  the  two 
arms  in  stretching  the  string  do,  in  a  certain  sense, 
pull  in  opposite  directions^  yet  their  modus  operandi 
is  essentially  the  same  and,  what  is  more  important, 
they  both  have  the  same  aim  in  view,  namely,  the 
stretching  or  breaking  of  the  twine  ? 

Now,  as  all  agree,  the  aim  of  all  striving,  whether 
animal  or  human,  is  life  and  development.  The 
■diiference  between  the  evolutionary  process  among 
men  and  among  animals  cannot,  therefore,  consist 
in  the  general  end  sought  to  be  attained.  What 
difference  there  is  can  only  consist  in  the  different 
sort  of  life  or  development  striven  for.  This,  indeed, 
is  a  very  great  difference,  but  is  not  one  which 
would  distinguish  generically  the  two  processes. 

Professor  John  Dewey  has  called  attention  to  the 
fact  that  there  is  no  distinction  in  kind  between 
those  brute  instincts  which  Mr.  Huxley  calls  natural 
and  those  higher  instincts  which  he  calls  moral. ^ 
The  animal  impulses  and  all  natural  impulses  are  not 
per  se  moral  or  immoral ;  they  are  the  basis  for  all 
moral  action,  and  whether  moral  or  immoral  depends 
upon  how  and  for  what  purpose  they  are  exercised. 

1  Monist,  Vol.  VIII,  p.  32. 


288  SOCIAL   JUSTICE 

Thus  both  natural  and  social  selection  operate  alike 
in  so  far  as  each  implies  adaptation  to  environment. 
The  essential  difference  between  the  two  processes 
consists,  as  has  been  before  suggested,  in  the  fact 
that  what  is  unconscious  with  the  brute  is  conscious 
with  man,  and  that  with  this  consciousness  comes 
moral  responsibility  for  the  manner  in  which  capaci- 
ties are  exercised,  and  the  character  of  ends  toward 
the  attainment  of  which  efforts  are  directed. 

But,  it  may  still  be  asked,  do  not  the  forms  of 
development  sought  for  by  men  differ  so  radically 
from  those  striven  for  by  members  of  the  lower  living 
world  as  to  necessitate  methods  that  are  essentially 
distinct  ?  At  first  sight  it  would  seem  so,  for,  as  we 
have  already  seen,  one  of  the  prime  characteristics  of 
the  ethical  regime  is  at  once  to  put  an  end  to  many 
forms  of  competition  which  reign  supreme  in  the 
realm  of  lower  life.  Yet,  when  we  look  at  the 
matter  closely,  we  find  that  in  reality  that  for  which 
ethical  man  seeks  is  ?iot  necessarily  to  check  the  com- 
petitive process,  hut  rather  to  fix,  as  criteria  of  fitness 
for  survival,  characteristics  different  from  those  estab- 
lished hy  purely  biological  laws.  The  aim  is  thus  not 
so  much  to  check  the  stream  of  competitive  energy 
as  to  direct  it  into  different  channels.  The  "  struggle 
for  existence  "  still  remains,  and  through  it  develop- 
ment is  secured,  but  the  weapons  used  are  changed, 
and  the  tests  of  superiority  altered  to  meet  the 
requirements  of  the  new  forms  of  development 
desired.  This  is  a  point  which  has  been  made  very 
plain  in  the  article  by  Professor  Dewey  from  which 


THE   ETHICS   OF   THE   COMPETITIVE  PROCESS        289 

we  have  already  quoted.  Competition  still  persists, 
but  it  is  no  longer  one  simply  for  life,  or  based 
upon  the  mere  physical,  or  lower  intellectual,  attri- 
butes. In  the  human  world  the  struggle  becomes 
one  the  conditions  of  which  are  moralized  by  the 
presence  of  sympathy,  ideas  of  justice,  and  in  general 
those  ideals  of  personal  perfection  which  man's  devel- 
oped mentality  discloses  to  him.  The  bare  struggle 
for  existence,  to  be  sure,  still  goes  on  to  a  very 
considerable  extent  among  the  lower  wage-earning 
classes,  and  this,  unfortunately,  often  approximates 
in  severity,  cruelty,  and  wastefulness  the  competi- 
tion of  the  sub-human  regime.  But  above  these 
classes,  as  the  higher  stages  of  social  life  are  reached, 
the  competition  is  modified  by  the  conditions  of 
which  we  have  spoken.  And,  even  as  to  the  lower 
classes,  the  effort  of  much  modern  legislation  is, 
while  not  destroying  competition,  to  raise  its  moral 
plane  by  the  enactment  of  laws  regulating  the  con- 
ditions under  which,  and  the  persons  by  whom,  cer- 
tain forms  of  more  arduous  and  dangerous  work  shall 
be  performed.  This  legislative  effort  is  also  supple- 
mented by  the  endeavors  of  school  and  church  —  the 
one  seeking  so  to  develop  the  minds,  the  other  so  to 
stimulate  and  direct  the  motives  and  emotions,  of  the 
members  of  the  lower  classes  that  they  may  secure, 
through  their  own  efforts,  an  amelioration  and 
moralization  of  their  life-conditions. 

Even  in  those  cases,  however,  in  which  the  morali- 
zation of  human  efforts  seems  to  necessitate  a  check- 
ing of   the    struggle  for   simple    survival,  a   deeper 


290  SOCIAL  JUSTICE 

insight  discloses  that  in  many  instances  this  is  not 
the  case.  Struggle  for  existence  means  nothing 
more  than  a  striving  for  adaptation  to  environment. 
It  is  thus  possible  to  show  that,  even  upon  a  purely 
utilitarian  basis,  many  of  our  most  common  altruistic 
acts  are  socially  self-serving ;  that,  though  they  call 
for  temporary  sacrifices,  they  serve  ultimately  to 
excite  emotions  and  to  create  habits  which  are 
socially  beneficial.  Thus,  for  example.  Professor 
De.wey  points  out  that  in  caring  for  the  sick  and  help- 
less "we  develop  habits  of  foresight  and  forethought, 
powers  of  looking  before  and  after,  tendencies  to 
husband  our  means,  which  ultimately  make  us  the 
most  skilful  in  warfare.  We  foster  habits  of  group- 
loyalty,  feelings  of  solidarity,  which  bind  us  together 
by  such  close  ties  that  no  social  group  which  has  not 
cultivated  like  feelings,  through  caring  for  all  its 
members,  will  be  able  to  withstand  us.  In  a  word, 
such  conduct  would  pay  in  the  struggle  for  existence 
as  well  as  be  morally  commendable."  ^ 

Finally,  upon  this  point,  it  is  to  be  observed,  as 
exhibiting  from  still  another  standpoint  the  essential 
similarity  between  social  and  animal  methods  of 
development,  that  these  so-called  altruistic  elements 
which  characterize  human  civilization  are  by  no 
means  absent  from  the  sub-human  world.  Not  to 
speak  of  that  dependence  of  offspring  upon  parent 
which  exists  among  almost,  if  not  all,  orders  of  life, 
there  is,  at  least  among  the  members  of  the  higher 
animal  species,  an  interdependence  that  often  implies 

1  Loc.  cil. 


THE   ETHICS   OF  THE   COMPETITIVE    PROCESS        291 

self-sacrifice,  and  leads  to  substantial  cooperation. 
It  may  be  that  such  actions  are  not  due  to  conscious 
ethical  motives,  but  they  result  at  any  rate  in  de  facto 
altruism  and  cooperation.  As  Mr.  Leslie  Stephen 
has  said  :  "  It  may  be  anthropomorphic  to  attribute 
any  maternal  emotions  of  the  human  kind  to  the 
animal.  The  bird,  perhaps,  sits  upon  her  eggs 
because  they  give  her  an  agreeable  sensation,  or  if 
you  please,  from  a  blind  instinct  which  somehow 
determines  her  to  the  practice.  She  does  not  look 
forward,  we  may  suppose,  to  bringing  up  a  family, 
or  speculate  upon  the  delights  of  domestic  affection. 
I  only  say  that  as  a  fact  she  behaves  in  a  way  which 
is  at  once  injurious  to  her  own  chances  of  individual 
survival  and  absolutely  necessary  to  tlie  survival  of 
the  species.  The  abnormal  bird  who  deserts  her 
nest  escapes  many  dangers,  but  if  all  birds  were 
devoid  of  the  instinct,  the  bird  would  not  survive  a 
generation."  ^ 

This  inclusion  of  the  ethical  within  the  cosmic 
process  removes  the  last  possible  ground  of  support 
for  that  fear  which  Mr.  Spencer  expresses  in  his  Man 
versus  the  State,  that  man  in  attempting  to  interfere 
with  competitive  laws  is  setting  himself  against 
august  nature  as  natura  natarans  —  that  he  is,  in 
effect,  pitting  the  microcosm  against  the  macrocosm. 
The  danger  of  this  proceeding,  he  declares,  is  appar- 
ent in  its  very  terms.  Thus  he  says:  "  If  the  political 
meddler  could  be  induced  to  contemplate  the  essen- 
tial meaning  of  his  plan,  he  would  be  paralyzed  by 

*  Social  Rights  and  Duties,  I,  p.  235. 


292  SOCIAL   JUSTICE 

the  sense  of  his  own  temerity.  He  proposes  to  sus- 
pend in  some  way  or  degree  that  process  by  which 
all  life  has  been  evolved." 

This  fear  of  Mr.  Spencer  lest  the  cosmic  forces  be 
interfered  with  by  man  is  one  constantly  reiterated 
by  him.  Yet  does  Mr.  Spencer  pretend  to  say  that 
it  is  possible  for  man  to  defeat  the  operation  of  a 
natural  or  cosmic  law  ?  Or,  if  he  does,  where  does 
he  draw  the  line  between  purely  natural  or  cosmic 
action  and  artificial  action  ?  If  he  would  apply  his 
censure  to  any  effort  on  the  part  of  man  to  escape 
from  the  operation  of  the  competitive  law,  should 
he  not,  we  may  ask,  extend  his  condemnation  to  any 
and  all  efforts  of  individuals  of  the  brute  creation  to 
avoid  danger  and  to  bring  themselves  into  better 
adjustment  of  their  milieu  f  Does  not,  in  fact,  all 
life,  human  as  well  as  animal,  imply  a  struggle  for 
adaptation  to  environment  ?  Also,  it  may  pertinently 
be  asked,  Why,  if  man  is,  as  Mr.  Spencer  holds,  able 
so  potently  to  affect  for  evil  the  operation  of  natural 
forces,  may  he  not,  conceivably  at  least,  be  able  to 
use  his  power  for  the  accomplishment  of  good  ?  Or 
are  natural  laws  of  such  a  peculiar  character  that, 
though  modifiable,  they  are  modifiable  only  for  the 
worse  ? 

As  a  matter  of  fact,  when  traced  to  its  source,  it 
is  found  that  Mr.  Spencer  everywhere  betrays  in  his 
writings  what  may  be  called  a  personal  hostility 
toward  governments.  Though  at  times  he  speaks 
of  government  as  subject  in  its  life  and  development 
to  cosmic  evolutionary  laws,  he  nevertheless,  when 


fl 


THE   ETHICS    OF   THE   COMPETITIVE   PROCESS        293 

treating  its  other  than  pure  police  functions,  uni- 
formly considers  it  as  something  unnatural,  artificial, 
existing  apart  from  nature,  as  having  interests  nec- 
essarily different  from,  if  not  absolutely  antagonistic 
to,  those  of  its  subjects,  and  as  using  them  but  as 
means  for  the  realization  of  its  own  and  necessarily 
evil  ends.  The  attitude  of  mind  of  Mr.  Spencer  is 
of  course  explainable  by  the  fact  that  in  his  study 
of  past  conditions,  he  has  for  the  most  part  dis- 
covered governments  controlled  by  oligarchies  and 
administered  selfishly  in  the  interests  of  those  in 
power.  We  reply,  however,  that  though  such  condi- 
tions may  serve  to  show  why  in  the  past  evil  results 
have  so  often  followed  governmental  action,  they 
have  no  power  whatever  to  show  that  such  will  in- 
evitably be  the  outcome  in  the  future.  Not  only  this, 
but  we  may  without  conceit  declare  ourselves  freed 
from  much  of  the  ignorance  under  which  our  ances- 
tors labored.  Also  we  may  point  to  the  fact  that  no 
longer  is  political  power  in  the  hands  of  the  minority, 
nor  exercised  in  its  behalf,  but  that  in  theory  wholly, 
and  in  practice  in  large  part,  government  by  the 
people  and  for  the  people  as  a  whole  is  a  realized  fact. 

The  criticism  just  made  of  Mr.  Spencer's  theories 
will  serve  as  a  basis  upon  which  to  make  an  estimate 
of  the  value  of  much  of  the  reasoning  of  Mr.  Kidd 
as  contained  in  his  Social  Evolution.  Like  Spencer, 
Kidd  accepts  unreservedly  the  application  of  the 
purely  biological  laws  of  evolution  to  social  man, 
and,  as  a   necessary   consequence,    condemns  as   ill 


294  SOCIAL   JUSTICE 

advised  all  efforts  directed  to  the  checking  of  their 
operation.^  Upon  this  ground  he  conceives  social- 
istic schemes  fundamentally  defective,  and  recom- 
mends in  their  stead  all  forms  of  social  or  political 
action  which  will  in  any  way  remove  present  hin- 
drances upon  competition.  He  is  optimistic  enough 
to  believe  that  the  present  trend,  of  Western  civiliza- 
tion at  least,  is  in  this  direction.  In  his  closing 
pages  he  says :  "  The  central  fact  working  itself  out 
in  our  midst  is  one  which  is  ever  tending  to  bring 
about,  for  the  first  time  in  the  history  of  the  race, 
all  the  people  into  competition  of  life  on  a  footing 
of  equality  of  opportunity.  In  this  process  the  prob- 
lem with  wliich  society  and  legislators  will  be  con- 
cerned for  long  into  the  future  will  be  how  to  secure 
to  the  fullest  degree  those   conditions    of   equality, 

^  Mr.  Kidd's  views  in  this  respect  are  rendered  still  more  radical 
by  the  fact  that  he  accepts  the  views  of  Weismann  and  his  school 
that  "  acquired  characteristics  "  are  not  inherited.  The  effect  of  this 
is,  of  course,  to  throw  the  entire  burden  of  progress  upon  natural 
selection  as  secured  by  the  competitive  process.  He  is  thus  neces- 
sarily led  to  declare  that  progress  will  be  the  most  swift  where  the 
number  of  men  born  into  the  world  is  greatest  in  excess  of  the  means 
of  possible  subsistence,  for  under  such  circumstances  the  competition 
will  be  the  keenest,  the  weeding  out  of  the  inefficient  most  rapid,  and 
the  selection  of  the  fit  most  exact.  It  is  a  perfectly  obvious  fact, 
however,  that  history  shows  this  not  to  have  been  the  result  among 
men.  This  incongruity  of  fact  and  theory  should  alone  have  been 
sufficient  to  warn  Kidd  that  his  premises  needed  revising.  In  this 
connection,  also,  we  might  call  attention  to  the  fact,  excellently 
brought  out  by  Mallock  in  his  Aristocracy  and  Evolution,  that  very 
much  of  the  competition  that  has  existed  among  men  has  been 
between  employers  rather  than  the  employed,  and  has  thus  been  a 
struggle  not  so  much  for  subsistence  as  for  dominion  and  other 
satisfactions.  Upon  this  point  see  also  a  review  of  Kidd's  work  by 
Theodore  Roosevelt  in  the  North  American  Review  for  July,  1895. 


THE   ETHICS    OF   THE   COMPETITIVE   PROCESS        295 

while  at  the  same  time  retaining  that  degree  of 
inequality  which  must  result  from  offering  prizes 
sufficiently  attractive  to  keep  up  within  the  com- 
munity that  stress  and  exertion  without  which  no 
people  can  long  continue  in  a  high  state  of  efficiency." 

There  is  much  truth  and  value  in  what  Kidd  has 
shown  us ;  and  to  the  doctrine  contained  in  the 
quotation  which  we  have  just  made  there  can 
scarcely  be  given  anything  but  praise.  For,  as  we 
have  seen,  the  result  of  our  own  inquiries  has  been 
to  show,  not  only  the  necessity  for,  but  the  actual 
persistence  of,  competition  among  men  even  in  the 
highest  social  states.  The  pity  is,  then,  that  in  the 
body  of  his  work  Kidd,  like  his  teacher  Spencer, 
should  nowhere  have  properly  characterized,  or  appar- 
ently comprehended,  what  should  be  the  true  char- 
acter of  this  competition,  but  should  have  interpreted 
it  as  practically  equivalent  to  that  mere  struggle  for 
life  and  subsistence  which  characterizes  the  sub- 
human sphere.  It  is  furthermore  unfortunate  that 
he  should  have  largely  covered  over  what  value 
otherwise  belonged  to  his  work  by  a  conception  of 
religion  and  of  its  social  value  almost  wholly  er- 
roneous, and  have  emphasized  this  error  by  an 
attempted  historical  analysis  of  the  progress  of  West- 
ern civilization  which,  aside  from  the  errors  arising 
from  the  false  premises  regarding  the  character  and 
influence  of  religious  beliefs,  displays  a  frequent 
ignorance  or  omission  of  important  facts. 

The  work  is  injured  also  by  the  assertion,  obviously 
untrue  in  fact  and   unnecessary  indeed   to  his  own 


296  SOCIAL   JUSTICE 

thesis,  of  an  unavoidable  and  complete  opposition 
between  the  interests  of  the  individual  and  of  the 
society  of  which  he  is  a  member.  Thus  in  one  place 
he  says,  "  The  interests  of  the  social  organism  and 
those  of  the  individuals  composing  it  at  any  time  are 
actually  antagonistic ;  they  can  never  be  reconciled, 
they  are  inherently  and  essentially  irreconcilable." 
In  justice  to  Kidd  it  should  be  said  that  he  elsewhere 
qualifies  the  above  statement  to  the  extent  of  imply- 
ing that  some  individuals  may  have  an  interest  in 
the  social  welfare.  This,  while  convicting  him  of 
inconsistency,  relieves  him  at  any  rate  of  absurdity. 
Let  us  stop  for  a  moment,  however,  to  see  what  is 
meant  by  the  declaration  that  the  interests  of  even 
a  majority  of  the  individuals  of  the  present  day  are 
necessarily  antagonistic  to  those  of  the  society  which 
they  constitute.  This,  even  in  its  qualified  form,  is 
a  most  serious  and  startling  assertion.  The  general 
argument  of  Kidd  shows  that  he  means  by  this  dec- 
laration that  all  individuals  are  by  nature  selfish ; 
that,  rationally,  they  conceive,  or  should  conceive, 
their  highest  welfare  to  consist  in  material  self-satis- 
faction ;  and  that  consequently  the  welfare  of  future 
generations  cannot  possibly  enter  as  a  reasonable 
factor  into  the  determination  of  their  conduct  or 
ideals.  To  the  statement  of  this  ethical  principle  is 
joined  the  assertion  that  race  or  social  progress  is 
possible  only  through  a  competitive  process  which 
involves  misery  and  destruction  to  a  great  majority 
of  the  participating  individuals.  From  these  two 
assertions  the   principle   is    deduced  that,  were  the 


THE   ETHICS    OF   THE   COMPETITIVE   PROCESS        297 

men  of  the  present  day  to  act  from  purely  rational 
motives,  they  would  put  a  stop  to  this  competitive 
struggle  by  the  institution  of  some  sort  of  socialistic 
scheme  which  would  benefit  themselves,  but  which 
would  at  once  put  an  end  to  social  progress ;  and 
would,  in  fact,  inaugurate  a  process  of  degeneration. 
This  would,  of  course,  mean  that  future  generations 
would  suffer  from  such  a  policy,  but  those  now  living 
would  realize  a  higher  degree,  or  at  least  a  greater 
amount,  of  comfort  and  pleasure  than  would  other- 
wise fall  to  their  lot. 

The  bald  utilitarianism  and  the  consequent  irra- 
tionality of  all  pure  forms  of  altruism  which  Kidd 
maintains  we  cannot  stop  to  criticise.  To  some 
extent  what  has  already  been  said  in  the  argument 
which  has  gone  before  will  serve  the  purpose.  But 
admitting  for  the  nonce  that  self-interest  in  its  strict- 
est sense  should  rule,  is  it  true  that  individual  and 
race  interests  are  antagonistic  and  irreconcilable  ? 

If  Kidd  had  merely  said  that,  as  at  present  organ- 
ized and  operated,  our  social  system  is  one  in  which 
race  progress  is  secured  at  the  expense  of  individual 
welfare,  that  would  have  been  a  simple  statement  of 
fact,  to  answer  which  it  would  merely  be  necessary 
thoroughly  to  examine  existing  social  conditions,  and 
from  such  an  examination  to  determine,  if  possible, 
whether  or  not  this  were  so.  But  this  is  not  what 
is  declared.  In  Social  Evolution  the  assertion  is 
made,  and  declared  to  have  been  demonstrated,  that 
the  two  interests,  race  and  individual,  are  inherently 
irreconcilable ;  that,  in  other  words,  it  is  impossible, 


298  SOCIAL  JUSTICE 

under  any  conceivable  social  regime,  to  secure  at  once 
race  progress  and  general  individual  success. 

The  demonstration  of  the  incorrectness  of  this 
assertion  depends  directly  upon  the  same  reasoning 
which  we  have  applied  to  the  theories  of  Spencer. 
The  source  of  the  error  of  Kidd  lies  in  his  failure  to 
comprehend  the  full  possibilities  of  the  competitive 
principle.  To  him,  filled  as  his  mind  is  with  the 
laws  of  mere  physical  life,  competition  seems  to 
mean  little  more  than  a  struggle  for  sustenance  and 
bare  existence.  We  are  in  hearty  accord  with  Kidd 
as  to  the  general  beneficence  among  men  of  a  regime 
in  which  merit  and  success  are  determined  by  a  fair 
and  free  contest,  and  we  confess  our  inability  to  con- 
ceive of  any  other  distributive  method  that  would  be 
of  equal  social  efficiency,  either  for  stimulating  the 
development  of  desirable  characteristics,  or  for  bring- 
ing into  the  fullest  and  most  effective  operation  those 
abilities  which  already  exist ;  but  we  differ  from  him 
in  that  we  hold  that  men  are  so  endowed  intellectu- 
ally and  emotionally  as  to  render  it  at  least  conceiv- 
ably possible  for  them  so  to  conduct  their  competitive 
efforts  as  to  secure  at  once  the  progressive  improve- 
ment of  their  race  and  a  life  of  relative  prosperity 
and  happiness  for  themselves.  In  other  words,  con- 
trary to  Kidd,  we  believe  that,  whatever  may  be  our 
present  state,  we  are  not  shut  off  from  conceiving  a 
possible  one  in  which,  while  admitting  to  the  fullest 
the  competitive  principle,  social  methods  will  be  so 
perfected  that  through  a  wider  diffusion  of  knowledge, 
a  better  adjustment  of   relations  between  employer 


THE    ETHICS    OF   THE   COMPETITIVE   PROCESS        299 

and  employed,  a  more  enlightened  sense  of  moral 
responsibility,  and  a  more  nearly  perfect  organization 
of  industry  generally,  not  only  will  the  means  be 
given  to  each  individual  to  make  known  the  capa- 
bilities, manual  or  intellectual,  which  he  possesses, 
but  the  opportunity  afforded  for  exercising  those 
talents  in  a  manner  both  remunerative  to  himself 
and  useful  to  society  at  large.  Thus,  through  the 
employment  of  forces  at  their  maximum  degrees 
of  efficiency  and  through  the  diminution  of  waste 
now  due  to  enforced  idleness  and  misdirected  efforts, 
it  may  be  hoped  that  the  aggregate  economic  prod- 
uct will  be  greatly  increased,  and  at  the  same  time 
that  the  conditions  which  we  have  mentioned  above 
will  secure  its  distribution  according  to  correct  prin- 
ciples of  justice.  Under  such  circumstances  we 
believe  that  future  social  progress  would  be  possible, 
and  at  the  same  time  a  regime  maintained  which 
would  be  rational  and  beneficent  to  the  individuals 
affected  by  it. 

What  we  have  thus  far  said  has  been  in  answer 
to  the  thesis  of  Kidd  that  individual  and  race  interest 
are  necessarily,  and  therefore  forever,  irreconcilable. 
As  a  matter  of  fact,  however,  we  hold,  as  do  of 
course  the  great  majority  of  thinking  men,  that  our 
social  system,  even  as  it  is  at  present  constituted  and 
conducted,  possesses  a  present  utilitarian  rationality 
to  the  great  majority  of  individuals.  At  the  same 
time  we  admit  that  there  are  some  as  to  whom  this 
assertion  does  not  hold  true.  When,  for  example, 
we  have  able-bodied  men  or  women  seeking  work 


300  SOCIAL   JUSTICE 

earnestly  and  unable  to  find  it,  or  individuals 
deprived  of  such  means  of  education  as  are  fairly 
needed  to  bring  to  light  abilities  possessed,  or  indi- 
viduals endowed  with  peculiar  talents  in  particular 
directions  and  unable  to  obtain  opportunity  for 
their  application  or  development,  it  can  scarcely  be 
said  that,  as  to  such  individuals,  the  existing  social 
system  is  rationally  justified. 

In  the  formation  of  an  estimate  as  to  how  many 
such  unfortunate  individuals  there  are  in  any  given 
society,  it  may  be  argued  that  whether  or  not  a  con- 
dition be  rational  to  an  individual  upon  a  utilitarian 
basis  must  necessarily  be  left  to  the  determination  of 
that  individual.  His  idea  of  pleasure  or  success,  it 
may  be  said,  may  differ  from  our  own,  but  as  long  as 
the  conditions  by  which  he  is  surrounded  meet  his 
own  tests  we  cannot  say  that  he  is  a  victim  to  the 
social  or  political  system  that  is  maintained  by  his 
race. 

If  such  an  argument  be  raised,  it  is  at  once  seen, 
however,  that  it  will  serve  to  justify,  in  this  respect 
at  least,  some  of  the  very  worst  civilizations.  In 
fact,  the  lower  the  state  of  civilization,  the  easier 
and  more  complete  would  the  justification  be,  for  it 
would  be  exactly  under  those  conditions  that  the 
individuals  would  be  so  ignorant  and  brutal  that 
they  would  have  neither  the  ability  nor  disposition 
to  reason  intelligently  regarding  their  best  interest. 
It  is  therefore  a  sufficient  answer  to  this  plea  to  say 
that  the  conditions  under  which  such  individuals 
have  lived  have  never  been  such  as  to  present  a 


THE   ETHICS   OF   THE    COMPETITIVE   PROCESS        301 

possibility  for  the  formation  of  truer  and  higher 
ideals  of  happiness  and  personal  welfare. 

To  this  it  may  be  rejoined  that  this  still  implies 
that  the  one  passing  the  judgment  upon  a  society 
determines  its  rationality  according  to  a  standard 
which  he  himself  sets  up,  and  not  according  to  one 
erected  by  the  individuals  themselves.  This  is  true, 
and  must  necessarily  be  so.  In  the  formation  of  any 
judgment  whatever,  a  critic  must  have  established 
for  himself  an  ideal  or  standard,  in  comparison  with 
which  the  facts  under  consideration  are  judged  and, 
by  their  conformity  or  nonconformity  to  it,  justified 
or  condemned.  In  this  sense  every  estimate  of  value, 
moral,  economical,  or  political,  is  necessarily  subjec- 
tive. But  it  is  not  subjective  in  so  far  as  the  one  by 
whom  it  is  formed  or  stated  eliminates  from  it  all 
elements  of  personal  bias  or  peculiarity.  Thus,  to 
take  the  example  we  have  mentioned,  if  the  critic 
has  no  regard  for  what  he,  individually,  with  his 
own  personal  peculiarities,  most  desires,  but  considers 
solely  what  form  of  welfare,  looked  at  from  the 
highest  ethical  standpoint,  would  be  most  suitable 
to  the  individuals  concerned,  and  which  would 
indeed  be  most  acceptable  to  them  were  they 
properly  informed,  an  objective  opinion  is  given. 

From  the  utilitarian  standpoint,  then,  there  are 
two  standpoints  from  which  any  given  society  may  be 
declared  to  be  irrationally  organized  or  directed.  It 
may  either  be  alleged  that  it  fails  to  provide  for  a 
possible  happiness  of  a  considerable  number  of  its 
individual  members,  according  to  the  standard  which 


302  SOCIAL   JUSTICE 

they  set  up ;  or  it  may  be  claimed  that,  though  it 
may  provide  a  possible  happiness  to  all  according  to 
their  own  standards,  it  yet  fails  to  provide  that 
intellectual  and  ethical  development  which  is  neces- 
sary to  secure  the  formation  of  better  ideals.  It  is 
easily  possible  for  a  given  social  regime  to  be  held 
delinquent  upon  either  or  both  of  these  counts. 

It  will  be  noticed  that  care  has  been  taken  in  the 
foregoing  to  make  use  of  the  phrase  "  possible  happi- 
ness." The  propriety  of  this  is  obvious.  A  social 
regime  cannot  be  held  responsible  for  unhappiness 
due  to  the  wilful  misconduct  of  a  sufferer,  as,  for 
example,  where  one,  either  by  failing  to  make  use 
of  the  opportunities  fairly  presented  to  him,  or  by 
deliberately  selecting  the  more  evil  of  two  courses  or 
refusing  to  sacrifice  a  present  pleasure  for  a  greater 
good,  has  brought  harm  upon  himself.  In  passing 
judgment  upon  the  rationality  of  a  regime  as  to  its 
effects  upon  individuals,  the  question  is  thus  not  as 
to  what  number  of  individuals  are  unsuccessful  and 
miserable,  but  as  to  what  number  are  so  because  of 
the  existence  of  that  regime.  Where  failures  are 
due  to  personal  faults  or  failings,  and  not  to  circum- 
stances over  which  the  individuals  have  no  control, 
there  is  reaped  only  that  which  has  been  sown,  and 
social  conditions  cannot  be  indicted  for  the  result. 

What  has  been  said  regarding  the  necessity  of 
framing  a  social  ideal  before  it  is  possible  to  pass  a 
judgment  upon  any  given  regime  implies  two  facts 
which  Kidd  and  many  others  seem  not  to  recognize, 
or  at  least  to  state.    These  are,  first,  that  happiness. 


THE   ETHICS    OF    THE  COMPETITIVE   PROCESS        303 

prosperity,  welfare,  success,  or  whatever  similar  terms 
may  be  used,  are  not  of  absolute  value,  but  relative 
to  a  standard  of  conceived  perfection ;  and,  secondly, 
that,  in  a  strict  sense,  no  condition  of  affairs  which 
is  subject  to  human  direction  is  absolutely  rational 
unless  ideally  perfect.  In  this  strict  sense,  therefore, 
in  so  far  as  any  regime  falls  short  of  perfection,  its 
continued  maintenance  is  irrational. 

In  the  light  of  the  first  fact  the  great  majority  of 
the  participants  in  any  general  contest  must  neces- 
sarily fail.  If  success  be  judged  by  the  achievements 
of  the  one  or  few  most  successful,  the  entire  remain- 
der fail.  Indeed,  in  many  cases  it  may  even  be 
held  that  all  have  failed,  inasmuch  as  the  most 
successful  may  have  fallen  far  short  of  that  which 
was  not  only  desirable,  but  possible  of  attainment. 
But  —  and  here  is  the  point  —  this  by  no  means 
proves  that  as  to  the  whole,  or  even  as  to  the  less 
successful  portion  of  the  people,  the  contest  has  been 
a  failure.  There  is  still  a  possibility  that  all,  or 
nearly  all,  have  received  benefit  from  the  struggle, 
though,  to  be  sure,  some  have  been  relatively  more 
rewarded  than  their  fellows.  For  those  who  believe 
as  fully  as  does  Kidd  in  the  efficiency  of  the  competi- 
tive regime  in  stimulating  the  energies  and  properly 
directing  the  efforts  of  individuals,  the  presumption 
is,  in  fact,  that  such  will  be  the  case  under  any  indi- 
vidualistic scheme  of  social  organization. 

Applying  now  the  second  fact  of  which  we  have 
spoken  above,  we  may  ask  what  is  the  proper  mean- 
ing of  the  question,  "  Is  a  given  social  regime  ration- 


304  SOCIAL   JUSTICE 

ally  justified?"  Strictly  speaking  no  completely 
rational  social  regime  has  ever  existed,  nor  will  such 
a  one  exist  until  that  form  of  organization  and  man- 
ner of  administration  is  effected  under  which  not 
only  race  progress  at  the  most  rapid  possible  rate  is 
secured,  but  complete  opportunity  afforded  to  every 
individual  member  to  render  effective  every  capabil- 
ity which  he  possesses,  and  to  develop  every  power 
potentially  possessed,  and,  finally,  under  which  is 
guaranteed  to  all  the  just  results  accruing  from  their 
several  activities.  When,  then,  it  is  said  by  Kidd 
that  present  social  conditions  are  without  a  rational 
basis,  he  is  right  in  the  sense  that  they  are  not  all 
that  they  should  be.  But  this,  as  we  have  seen,  is 
not  the  comparison  which  Kidd  makes.  His  asser- 
tion is  that  past  and  present  social  regimes,  so  far 
as  they  are  competitive,  are  irrational  when  viewed 
from  the  individualistic  standpoint ;  and,  so  far  as 
non-competitive,  irrational  when  viewed  from  the 
social  standpoint.  He  thus  excludes  the  possibility 
of  a  regime  rational  from  both  standpoints.  He  is, 
therefore,  unable  to  conceive  of  an  absolutely  ideal 
state,  though,  as  between  the  two,  he  prefers  that 
absolutely  competitive  state  in  which  the  progress  of 
the  race  is  best  secured. 

For  the  sake  of  clearness,  we  will  state  again  our 
position.  We  agree  with  Kidd  in  believing  that  the 
absolutely  competitive  state  is  the  ideal  one ;  but  we 
disagree  with  him  as  to  the  impossibility  of  securing 
general  individual  welfare  thereunder.  When  we 
speak  of  the  ideal  goal  of  human  progress  necessitat- 


THE   ETHICS    OF   THE   COMPETITIVE   PROCESS        305 

ing  the  establishment  of  an  absolutely  competitive 
regime,  we  qualify  this  by  adding  the  condition  that 
competition  is  to  be  maintained  only  upon  the  very 
highest  planes.  The  regime  must  be  one  in  which, 
as  has  been  already  implied,  the  criteria  of  fitness 
for  success  or  survival  will  be  the  possession  of  abso- 
lutely the  highest  moral  qualities.  This  naturally 
implies  the  disappearance  of  all  the  lower  and  more 
brutalizing  forms  of  strife,  and  with  them  the  avoid- 
ance of  all  the  unnecessary  forms  of  suffering  to 
which  they  give  rise.  It  means  that  no  one  shall 
find  himself  born  into  a  social  world  in  which  he  is 
to  any  degree  so  bound  by  social  requirements  or  so 
hindered  by  the  intricacy  of  the  economic  machinery, 
in  the  management  of  which  he  constitutes  but  an 
insignificant  agent,  that  he  is  unable  to  develop  to 
the  fullest  his  capacities,  to  educate  to  the  fullest 
his  desires,  and  to  reap  to  the  fullest  the  rewards  of 
his  individual  merit.  Thus  interpreted,  it  needs  no 
imaginative  development  to  show  that  in  a  society 
so  organized  there  would  need  be  no  sacrifice  of  the 
welfare  of  individuals,  either  present  or  to  come. 
Thus,  as  a  result  of  his  long  course  of  reasoning, 
we  are  finally  brought  to  sustain  the  thesis  of 
Mr.  Spencer  which  we  originally  criticised,  namely, 
"^  that  the  interests  of  humanity  are  to  be  best  sub- 
served by  giving  full  effect  to  the  law  that  each 
individual  shall  receive  the  benefits  and  evils  of  his 
own  nature  and  its  consequent  conduct."  It  is  only 
in  the  interpretation  of  this  rule  that  we  have  differed 
widely  from  that  philosopher. 


306  SOCIAL   JUSTICE 

It  is  especially  in  the  bearing  of  the  rule  upon  the 
question  of  the  legitimate  extent  of  social  control 
that  we  are  at  variance  with  him.  To  us  its  recog- 
nition as  a  principle  would  carry  with  it  no  necessary 
demand  for  a  diminution  in  the  functions  of  govern- 
ment. Its  recognition  would,  to  be  sure,  imply  a 
change  in  character  and  motive  of  many  of  the 
State's  present  activities,  but  would  not  necessarily 
decrease  their  aggregate  amount.  It  would  involve 
the  disappearance  of  many  forms  of  industrial  inter- 
ference that  now  exist,  and  the  abandonment  of  all 
of  the  cruder  forms  of  state  socialism.  But  it  would 
permit  a  vast  extension  of  the  present  regulative 
and  educational  functions  of  the  governing  powers. 
The  State's  regulative  powers  could  be  made  to 
embrace  all  those  functions  which  are  necessary : 
first,  to  prevent  the  limitation  of  the  freedom  of 
individuals,  such  as  is  sometimes  attempted  by  such 
organized  bodies  as  churches,  labor  unions,  political 
societies,  and  industrial  combinations ;  and,  secondly, 
to  secure  competition  along  the  highest  lines,  by 
providing  that  certain  forms  of  work  shall  be  car- 
ried on  under  prescribed  conditions,  as  regards,  for 
instance,  hours  of  work,  employment  of  women  and 
children,  and  maintenance  of  hygienic  conditions. 

The  educational  functions  of  the  State  could  in 
like  manner  be  subjected  to  almost  indefinite  exten- 
sion. They  could  be  made  to  include,  not  only  the 
collection  and  dissemination  of  every  variety  of  infor- 
mation, statistical  or  otherwise,  which  could  be  of 
possible  value  to  the  people,  but  could  also  properly 


THE   ETHICS   OF   THE   COMPETITIVE   PROCESS        307 

be  made  to  embrace  the  more  directly  pedagogic  task 
of  providing  for  the  freest  and  most  adequate  instruc- 
tion in  all  forms  of  human  knowledge,  practical  and 
speculative. 

Such  activities  as  the  above  would  not  necessarily 
be  anti-competitive  or  socialistic  in  character.  In 
my  book  The  Nature  of  the  State,  after  dividing  the 
functions  of  the  State  into  essential  and  non-essential 
duties  (meaning  by  non-essential,  all  those  activities 
assumed  by  the  State,  not  because  their  exercise  is  a 
sine  qua  non  of  the  State's  existence,  but  because 
their  public  administration  is  supposed  to  be  advan- 
tageous to  the  people),  I  called  attention  to  the  fact 
that  this  latter  class  is  separable  into  two  divisions 
which  may  properly  be  termed  socialistic  and  non- 
socialistic.  The  socialistic  duties  properly  compre- 
hend only  activities  which  can  and  will  be  exercised 
by  the  people  if  left  to  their  private  initiative.  Their 
assumption  is,  therefore,  to  that  extent,  a  curtailment 
of  industrial  freedom  of  the  people.  The  non-social- 
istic duties  include  those  which,  if  not  assumed  by 
the  State,  either  cannot  or  will  not  be  exercised  at 
all.  As  I  said  in  the  work  to  which  I  have  referred : 
"  They  are  duties  not  essential  to  the  State's  exist- 
ence, and  yet,  from  their  very  nature,  not  likely  or 
even  possible  of  performance  by  private  parties.  Such 
duties  as  these  are,  therefore,  not  socialistic,  because 
their  public  assumption  does  not  limit  the  field  of 
private  enterprise,  nor  in  any  way  interfere  with  pri- 
vate management  of  any  sort  of  industry.  As  a  rule 
they  are  powers  educational  in  character  rather  than 


308  SOCIAL   JUSTICE 

coercive,  directive  rather  than  controlling.  Under 
this  head  come  all  those  administrative  duties  that 
are  of  an  investigating,  statistical  character,  and 
consist,  not  in  the  interference  with  industry,  but  in 
the  study  of  conditions  and  the  diffusion  of  the  infor- 
mation thus  obtained.  Work  of  this  kind  is  that 
performed  by  the  United  States  Departments  of  Labor 
and  Agriculture,  by  the  Bureau  of  Education,  the 
Fish  Commission,  the  Coast  and  Geodetic  Survey,  by 
the  Census  Bureau,  etc.  Public  libraries  and  reading 
rooms,  boards  of  health,  the  provision  of  public  parks, 
and  certain  branches  of  education  also  come  under 
this  head.  Their  purpose  is  not  to  interfere  with  the 
struggle  for  existence  and  the  survival  of  the  fittest, 
but  to  transform  the  environment,  and,  by  diffusing 
sounder  information  concerning  the  character  of  the 
conditions  and  the  nature  of  the  forces  by  which  man 
is  surrounded,  to  render  it  possible  for  him  either  to 
harmonize  his  efforts  with  them  or  to  direct  his 
strength  and  intelligence  to  a  modification  of  them ; 
in  fine,  to  increase  his  opportunities."  ^ 

But  even  the  ownership  and  direct  operation  of 
industrial  concerns  by  the  State  are  not  necessarily 
excluded  by  the  adoption  of  the  competitive  principle. 
As  long  as  it  appears  that  a  given  industry,  if  left  in 
private  hands,  will  almost  inevitably  be  subjected  to 
the  control  of  some  one  or  few  commercial  "  trusts," 
whereby  true  or  healthy  competition  is  rendered 
impossible,  the  assumption  by  the  State  of  its  man- 
agement will  at  least  not  lessen  competition ;  while, 

1  The  Nature  of  the  State,  pp.  347-348. 


THE   ETHICS   OF   THE   COMPETITIVE   PROCESS        309 

on  the  other  hand,  it  will  secure  to  the  people  gener- 
ally the  benefits  flowing  from  the  monopoly.  This 
control  cannot,  however,  consistently  with  the  com- 
petitive principle,  be  applied  so  long  as  there  is  a 
possibility  of  devising  effective  means  for  so  control- 
ling the  organization  and  operation  of  monopolies 
that  a  healthy  competition  may  be  obtained. 

In  the  second  place,  aside  from  the  qualifications 
of  the  above,  state  operation  of  an  industry  may  be 
justified  upon  the  competitive  principle  if  by  so  doing 
the  industry  is  managed  in  such  a  way  that  a  greater 
degree  of  true  competition  will  be  maintained  between 
the  individuals  employed  than  would  be  the  case 
under  private  management.  This  we  consider  a  very 
important  point,  though  not  one  which  we  remember 
to  have  seen  often  urged.  From  the  social  stand- 
point it  is  much  more  desirable  that  there  should  be 
healthy  competition  between  employees  than  that 
there  should  be  a  contest  between  industrial  concerns. 
It  is  one  of  the  chief  evils  of  the  present  industrial 
regime  of  production  on  a  large  scale  that  the  chief 
competition  that  exists  is  between  working  men  and 
women  in  securing  employment.  Positions  once 
secured,  competition  largely  ceases.  The  employees 
become  merged  in  a  large  body  of  workers,  and  have 
little  direct  personal  interest  in  the  work  which  they 
perform.  Even  in  those  private  industries  in  which 
the  wages  paid  are  proportionate  to  the  amount  of 
work  done,  the  individual  is  not  permitted,  as  a  rule, 
to  exhibit  his  full  degree  of  skill.  In  many  cases  it 
is  an  unwritten  law  among  such  workmen  that  cer- 


310  SOCIAL  JUSTICE 

tain  maxima  of  piece  work  shall  not  be  exceeded, 
even  by  the  most  able  and  skilful,  for  the  very 
satisfactory  reason  that  if  such  maxima  are  more 
than  occasionally  exceeded  the  price  paid  per  piece 
by  the  employers  will  inevitably  be  reduced,  with 
the  result,  of  course,  that  the  most  efficient  will 
henceforth  receive  no  more  than  they  would  have 
earned  under  the  old  scale,  while  all  the  remainder 
will  receive  less. 

If,  then,  we  can  have  a  governmental  control  in 
which  earnings  are  graded  according  to  the  amount 
and  character  of  work  done,  and  in  which  a  careful 
inspection  is  maintained  for  the  purpose  of  detecting 
with  reasonable  certainty  the  presence  of  merit  or 
demerit  in  all  their  degrees,  and  of  rewarding  them 
proportionately,  either  by  increase  or  decrease  of 
wages,  or  by  changing  the  chiaracter  of  work  required, 
then  a  truer  and  more  beneficial  competition  will  be 
maintained  than  the  old  competition  between  con- 
cerns which  the  governmental  monopoly  will  destroy. 
We  are  not,  however,  to  be  considered  as  maintaining 
that  any  such  beneficent  governmental  management 
will  be  likely  to  result  from  public  control,  political 
morality  and  intelligence  being  what  they  now  are. 
We  should,  in  fact,  expect  the  reverse.  All  that  we 
wish  to  point  out  is  that  the  application  of  the  com- 
petitive principle  would  not  necessarily,  that  is,  under 
all  conceivable  conditions,  exclude  such  governmental 
ownership  and  operation. 

By  way  of  summarization  of  the  points  of  difference 
between  the  conclusions  to  which  we  have  been  led  by 


THE   ETHICS    OP   THE   COMPETITIVE   PROCESS        311 

the  adoption  of  the  competitive  principle  as  an  ideal 
one,  and  those  reached  by  Mr.  Spencer  in  applying 
the  same  principle,  we  may  say :  First,  that,  instead 
of  leaving  individuals  to  conduct  their  contests  in 
their  own  way,  unrestrained  by  social  control,  we 
would  justify  all  actions  of  the  State  which  will  tend 
to  raise  the  ethical  plane  of  competition.  Secondly, 
we  would  justify  state  intervention  where  such  inter- 
vention is  for  the  purpose  of  preventing  oppression 
of  individuals  by  each  other.  Thirdly,  we  would 
justify  such  intervention  where,  without  it,  monopolies 
or  trusts  would  be  organized  under  private  manage- 
ment. Fourthly,  we  would  justify  state  action  where 
its  influence  is  educative,  or  where  it  is  limited  to  the 
performance  of  some  duty  which  otherwise  would  not 
be  performed  at  all.  Fifthly,  we  would  justify  state 
action  where,  although  its  effect  is  to  put  an  end  to 
certain  forms  of  competition,  its  result  is  the  stimula- 
tion and  maintenance  of  better  forms  of  rivalry. 

It  is  now  necessary  to  answer  one  final  question. 
It  may  be  asked  whether  these  kinds  of  govern- 
mental intervention  which  we  have  justified  do  not 
rest  for  their  justification  upon  the  implication  of  a 
certain  amount  of  ignorance  or  viciousness  on  the 
part  of  the  people,  and  whether,  therefore,  it  is  not 
true  that  as  civilization  advances  the  necessity  for 
this  intervention  will  decrease,  until  finally,  when 
the  final  goal  of  human  progress  is  reached,  the 
need  for  political  control  will  have  entirely  dis- 
appeared. If  we  answer  yes  to  this,  we  in  effect 
affirm  that,  though  the  anarchistic  state  be  not  now 


312  SOCIAL   JUSTICE 

desirable,  it  yet  stands  as  an  ideal  continually  to  be 
striven  for  and,  possibly,  ultimately  to  be  realized. 

This  proposition  has  been  and  still  is  widely  held. 
Spencer  in  his  Social  Statics  says :  "  It  is  a  mistake 
to  assume  that  government  must  necessarily  last 
forever.  The  institution  marks  a  certain  stage  of 
civilization  —  is  natural  to  a  peculiar  phase  of  human 
development.  It  is  not  essential,  but  incidental.  As 
amongst  Bushmen  we  find  a  state  antecedent  to  gov- 
ernment, so  there  may  be  one  in  whicli  it  shall  become 
extinct."  ^  And  again  he  says :  "  Does  it  [government] 
not  exist  because  crime  exists  ?  .  .  .  Is  there  not 
more  liberty,  that  is,  less  government,  as  crime 
diminishes  ?  And  must  not  government  cease  when 
crime  ceases,  for  the  very  lack  of  objects  on  which 
to  perforin  its  function  ?  Not  only  does  magisterial 
power  exist  because  of  evil,  but  it  exists  by  evil."  ^ 

Janet  takes  the  same  view  in  his  Histoire  de  la 
Science  politique :  "  Imaginez  [he  says]  en  effet  une 
politique  parfaite,  un  gouvernement  parfait,  des  lois 
parfaites,  vous  supposez  par  la  meme  des  homines 
parfaits.  Mais  alors  la  politique  ne  serait  plus  autre 
chose  que  le  gouvernement  libre  de  chaque  homme 
par  soi-meme  :  en  d'autres  termes,  elle  cesserait  d'etre. 
Et  cependant,  c'est  la  sa  fin  et  son  ideal.  L'objet  du 
gouvernement  est  de  preparer  insensiblement  les 
hommes  a  cet  etat  parfait  de  societe,  oil  les  lois  et 
le  gouvernement  lui-meine  deviendraient  inutiles."^ 

Hume,  too,  in  his  essay.  Of  the  Original  Contract, 
says,  "  Were  all  men  possessed   of   so   inflexible   a 

1  Edition  1873,  p.  24.  2  j^g^i^  p.  030.  »  Vol.  T,  p.  ci. 


THE   ETHICS    OF    THE    COMPETITIVE   PROCESS        313 

regard  to  justice  that  of  themselves  they  would 
totally  abstain  from  the  properties  of  others,  they 
had  forever  remained  in  a  state  of  absolute  liberty, 
without  subjection  to  any  magistrate  or  political 
society."  The  assertion  of  Jules  Simon,  that  "  the 
State  ought  to  render  itself  useless  and  prepare  for 
its  own  decease,"  indicates  the  same  view.  So  also 
we  find  the  late  Professor  Freeman  asserting :  "  As 
for  discussions  about  any  one  ideal  form  of  gov- 
ernment, they  are  simply  idle.  The  ideal  form  of 
government  is  no  government  at  all.  The  existence 
of  government  in  any  shape  is  a  sign  of  man's  imper- 
fection." ^  And,  finally,  to  similar  effect  is  the  declara- 
tion of  Paine  in  his  Common  Sense,  that  "  government, 
like  dress,  is  the  badge  of  lost  innocence." 

What  degree  of  truth  is  there  in  this  conception  of 
anarchism  or  no-government  as  an  ideal  ?  In  one 
sense  there  is  a  good  deal ;  in  another,  none.  If 
by  anarchism  reference  is  had  to  the  absence  of  all 
coercion,  the  conception  is  a  valid  one.  If,  however, 
the  idea  is  that  all  forms  of  public  activities  shall 
disappear,  it  is  invalid.  As  we  have  elsewhere 
pointed  out,  all  coercion  is  in  itself  painful,  and 
therefore  an  evil.  An  ideal  social  order  must,  there- 
fore, be  one  in  which  the  element  of  coercion  is  to 
play  no  part.  On  the  other  hand,  as  we  have  also 
pointed  out,  in  so  far  as  political  laws  or  social  con- 
ventions are  recognized  as  just  by  those  whose  actions 
are  to  be  controlled,  no  feeling  of  coercion  is  expe- 
rienced.    The  absence  of   coercion  which  is  ideally 

*  Historical  Essays,  Fourth  Series. 


314  SOCIAL  JUSTICE 

demanded  does  not,  therefore,  necessarily  imply  the 
disappearance  of  all  forms  of  public  activities  and 
regulations.  In  fact,  were  all  men  morally  perfect 
and  intellectually  enlightened,  public  activities  would 
in  all  probability  be  very  widely  extended.  For  with 
men  so  perfect  morally  and  intellectually,  there  would 
be  no  difhcnlty  either  in  establishing  or  operating  an 
administrative  machine  with  any  number  of  functions. 
Controlled  by  such  wise  and  upright  men,  the  econo- 
mies in  production  that  would  follow  from  the  estab- 
lishment of  such  a  control  would  be  obvious,  and  at 
the  same  time  the  necessary  comj)etitive  struggle 
between  individual  workers  could  be  maintained  — 
if,  indeed,  any  competition  would  be  needed  to 
stimulate  the  energies  and  to  weed  out  the  unfit  in 
a  race  already,  ex  hyjyothesi,  so  nearly  perfect. 

It  is  true,  however,  that  should  such  a  state  of 
development  ever  be  attained,  many  of  what  are 
now  among  the  most  important  of  the  functions  of 
tlie  State  would  fall  into  disuse.  The  exercise  of  all 
the  punitive  and,  to  a  large  extent,  the  educational 
activities  of  the  political  authorities  would  become 
unnecessary.  Legislation  would  be  needed,  not  so 
much  for  the  purpose  of  applying  coercion,  as  for 
the  sake  of  providing  such  uniform  rules  as  con- 
venience would  dictate.  Civil  as  well  as  criminal 
litigation  would  conceivably  cease.  Only  the  admin- 
istrative duties  of  the  State  would  remain.  These 
would  probably  be  increased  so  as  to  include  the 
performance  by  the  State  of  every  possible  service 
that  could,  from  the  nature  of   the  case,  be    better 


THE   ETHICS    OF   THE   COMPETITIVE   PROCESS        315 

performed  by  a  single  agent  than  by  the  several 
efforts,  however  harmonious,  of  private  individuals. 
By  way  of  conclusion  of  this  long  inquiry,  then, 
it  may  be  stated  that  we  have  reached  a  posi- 
tion which  sustains  that  portion  of  the  theory  of 
the  socialist  which  justifies  the  extension  of  state 
activities  in  any  conceivable  direction  where  it  can 
be  shown  that,  as  a  matter  of  fact,  political  control 
will  be  followed  by  beneficent  results.  At  the  same 
time,  this  does  not  commit  us  to  the  advocacy  of 
social  control  in  any  given  case.  An  estimate  of  all 
the  considerations  involved  may  indeed  easily  lead 
us  to  advise  the  reduction  of  state  duties  to  a  mini- 
mum below  that  now  practised  in  any  of  our  civilized 
States.  In  truth,  so  far  as  the  reasoning  that  has 
gone  before  is  concerned,  the  tendency  has  been  to 
emphasize  the  possibilities,  both  for  race  and  individ- 
ual progress,  that  are  wrapt  up  in  the  competitive 
principle. 


CHAPTER  X 

PUNITIVE    JUSTICE 

Thus  far  in  our  work  we  have  been  examining 
canons  of  justice  as  applicable  to  the  distribution  of 
rewards.  We  turn  now  to  the  questions  of  right 
involved  in  the  apportionment  of  penalties  or  pun- 
ishments. 

Of  the  Distinction  between  Corrective  and  Dis- 
tributive Justice.  —  Since  Aristotle's  time  it  has 
been  common  to  distinguish  between  distributive 
and  corrective  justice.  In  his  Nicomachean  Ethics 
the  Stagirite  says :  ^  "Of  particular  justice,  and  of 
the  particular  just  which  is  according  to  it,  one 
species  is  that  which  is  concerned  in  the  distribu- 
tion of  honor,  or  of  wealth,  or  of  any  of  those  things 
which  can  possibly  be  distributed  among  the  mem- 
bers of  a  political  community,  for  in  these  cases  it  is 
possible  that  one  person,  as  compared  with  another, 
should  have  an  unequal  or  an  equal  share ;  the  other 
is  that  which  is  corrective  in  transactions  between 
man  and  man.  And  of  these  there  are  two  divi- 
sions, for  some  transactions  are  voluntary  [i.e.  we 
take  it,  voluntary  as  to  both  or  all  parties  concerned] 
and  others  involuntary  [as  to  one  of  the  parties] ; 
the  voluntary  are    such  as  follow :    selling,  buying, 

1  Book  V,  Chapter  II,  Bohn's  edition. 
316 


PUNITIVE   JUSTICE  317 

lending,  pledging  transactions,  borrowing,  depositing 
of  trusts,  hiring ;  and  they  are  so  called  because  the 
origin  of  such  transactions  is  voluntary.  Of  involun- 
tary transactions,  some  are  secret,  as  theft,  adultery, 
poisoning,  pandering,  enticing  away  of  slaves,  assas- 
sination, false  witness ;  others  accompanied  with 
violence,  as  assault,  imprisonment,  death,  robbery, 
mutilation,  evil-speaking,  contumelious  language." 
In  the  next  chapter,  speaking  of  distributive  justice, 
Aristotle  says,  ''  If  the  persons  are  unequal,  they  will 
not  have  equal  things.  .  .  .  This  is  clear  from  the 
expression  ^  according  to  worth ' ;  for  in  distributions 
all  agree  that  justice  ought  to  be  according  to  some 
standard  of  worth,  yet  all  do  not  make  that  standard 
the  same ;  for  those  who  are  inclined  to  democracy 
consider  liberty  as  the  standard;  those  who  are  in- 
clined to  oligarchy,  wealth  ;  others,  nobility  of  birth ; 
and  those  who  are  inclined  to  aristocracy,  virtue. 
Justice  is  therefore  something  proportionate."  In 
Chapter  IV,  speaking  of  corrective  justice,  he  says : 
"  But  the  other  one  [form  of  justice]  is  the  correc- 
tive, and  its  province  is  all  transactions,  as  well 
voluntary  as  involuntary.  But  this  justice  has  a 
different  form  from  the  preceding ;  for  that  which  is 
distributive  of  common  property  is  always  according 
to  the  proportion  before  mentioned.  For  if  the  dis- 
tribution be  of  common  property,  it  will  be  made 
according  to  the  proportion  which  the  original  con- 
tributions bear  to  each  other ;  and  the  unjust  which 
is  opposed  to  this  just  is  contrary  to  the  proportion- 
ate.    But  the  just  which  exists   in  transactions   is 


318  SOCIAL  JUSTICE 

something  equal,  and  the  unjust  is  something  un 
equal,  but  not  according  to  geometrical  but  arithmet- 
ical proportion;^  for  it  matters  not  whether  a  good 
man  has  robbed  a  bad  man,  or  a  bad  man  a  good 
man,  nor  whether  a  good  or  a  bad  man  has  com- 
mitted adultery ;  the  law  looks  to  the  difference  of 
the  hurt  alone,  and  treats  the  persons,  if  one  com- 
mits and  the  other  suffers  injury,  as  equal,  and  also 
if  one  has  done  and  the  other  suffered  hurt.  So  the 
judge  endeavors  to  make  this  unjust,  which  is  un- 
equal, equal;  for  when  one  man  is  struck  and  the 
other  strikes,  or  even  when  one  kills  and  the  other 
dies,  the  suffering  and  the  doing  are  divided  into 
unequal  parts  ;  but  then  he  endeavors  by  means  of 
punishment  to  equalize  them  by  taking  somewhat 
away  from  the  gain." 

According  to  our  views,  the  above  distinction 
between  corrective  and  distributive  justice  is  not  a 
proper  one,  all  justice,  from  its  very  nature,  being 
distributive.  That  is  to  say,  justice  is  ever  a  matter 
of  relative  or  respective  desert  as  between  two  or 
more  individuals,  or  between  individuals  and  the  soci- 
eties of  which  they  are  members.  Strictly  speaking, 
therefore,  the  phrase  "  distributive  justice,"  which  we 
have  so  often  employed,  is  redundant.  We  have,  how- 
ever, believed  that  a  concession  to  popular  speech  in 
tliii^  respect  would  add  clearness  to  our  thought. 

Aristotle's  description,  so  far  as  it  relates  to  that 
equality  of  consideration  which  suitors,  irrespective 

'  For  meaning  of  this  distinction,  see  Nicomachean  Ethics,  Book  V, 
Chapter  III. 


PUNITIVE   JUSTICE  319 

of  their  worths,  may  claim  from  the  administrators 
of  the  law,  is  a  correct  one.  In  civil  wrongs  it  is 
proper  to  say  that  the  action  of  the  law  has  for  its 
essential  purpose  the  securing  as  far  as  possible  the 
status  quo  ante,  that  is,  the  putting  of  the  parties 
into  that  position  in  which  they  would  have  been 
had  the  wrong  not  been  committed.  But,  after  all, 
in  so  doing  the  courts  are  not  determining  and  apply- 
ing principles  of  justice  except  in  the  formal  legal 
sense.  The  principles  of  justice  in  their  pure  ethical 
meaning  have  been  determined  when  the  sense  of  the 
community  in  its  customary  law,  or  the  legislature 
in  its  enacted  statutes,  has  determined  what  rules 
shall  be  considered  as  just  for  the  governance  of  men 
in  their  dealings  with  one  another,  and  what  actions 
shall  be  considered  and  treated  as  unjust  and  there- 
fore wrong.  This  determined,  the  courts  have  but 
the  formal  task  of  determining  the  facts  involved, 
and  of  applying  the  legal  principles  appropriate  to 
them.  Thus  we  find  that  corrective  justice  so-called, 
as  applied  to  civil  matters  at  least,  is  not  justice  at 
all,  except  in  a  formal  sense.  It  is  simply  the  vindi- 
cation of  legal  rights,  irrespective  of  whether,  under 
the  given  circumstances,  they  are  ethically  valid  or 
not.  That  they  are  recognized  by  the  law  is  suffi- 
cient to  make  it  incumbent  upon  the  courts  to  nul- 
lify, so  far  as  possible,  any  violation  of  them,  and 
thus  to  bring  about  a  condition  of  affairs  which  should, 
from  the  legal  standpoint,  never  have  been  disturbed. 
How  is  it  with  corrective  justice  as  applied  to 
matters    of  violence  or  crime?      Here,  as  we  have 


320  SOCIAL   JUSTICE 

seen,  the  implication  of  Aristotle  is  that  the  pen- 
alties which  the  law  enacts  are  for  the  purposes  of 
bringing  about,  so  far  as  possible,  a  lost  equilibrium. 
When  property  obtained  by  crime  is  restored  to  its 
owners,  the  status  quo  ante  is,  in  a  certain  sense,  re- 
established. But  this  is  a  matter  distinct  from  the 
penalty  which  the  law  imposes  upon  one  who  has 
violated  its  ordinances.  In  crime  such  a  thing  as 
the  reestablishment  of  antecedent  conditions  is  impos- 
sible. In  some  few  cases  it  may  be  possible  to  visit 
upon  the  offender  a  violence  similar  to  that  of  which 
he  has  himself  been  guilty,  but  there  is  no  tendency 
in  such  a  proceeding  toward  a  reestablishment  of 
those  conditions  which  have  been  destroyed  by  the 
act  of  the  criminal.  He  has  committed  a  violence, 
and  violence  has  been  committed  upon  him,  but  the 
latter  violence  does  not  blot  out  the  former.  Thus 
we  see  that  as  to  acts  of  force  or  violence,  corrective 
justice  so  called  by  Aristotle  is  not  corrective  in  any 
true  sense.  The  moral  element  has  entered  in  the 
determination  of  what  acts  shall  be  considered  as 
crimes ;  and,  this  determined,  the  decision  as  to 
what  forms  and  degrees  of  punishment  shall  be 
applied  to  those  committing  them  becomes  a  ques- 
tion of  distributive  justice. 

The  Importance  of  Crime  as  a  Social  Phenomenon. 
—  Few  subjects  there  are  either  in  ethical  or  political 
science  which  approach  in  importance  that  of  Crime. 
The  cost  to  society  of  crime  in  all  its  degrees  and 
phases  is  enormous.  The  figures  of  the  federal  cen- 
sus for  1890  showed  nearly  eighty  thousand  inmates 


PUNITIVE   JUSTICE  321 

of  our  prisons  and  reformatories,  and  this  number, 
following  the  estimate  given  us  by  experts  that  at 
any  one  time  probably  not  one-third  of  the  total 
number  of  criminals  are  in  imprisonment,  gave  us 
then  a  total  criminal  population  of  two  hundred  and 
fifty  thousand.  To  the  loss  arising  from  the  destruc- 
tion of  life  and  property  by  the  illegal  acts  of  this 
vast  army,  must  be  added  the  expenses  of  prevent- 
ing, detecting,  and  punishing  crime.  In  the  United 
States  there  are  more  than  fifty  large  penitentiaries, 
and  over  seventeen  thousand  country  jails,  police 
stations,  and  city  prisons.  It  is  calculated  that 
$500,000,000  would  be  a  low  estimate  of  the  cost  of 
these  buildings.  This  is  of  course  all  dead  capital. 
At  five  per  cent  interest  this  sum  would  yield  a 
yearly  income  of  $25,000,000.  But  even  this  waste 
sinks  into  insignificance  when  compared  with  the  cost 
of  supporting  these  institutions  and  our  penal  sys- 
tems generally,  including  the  maintenance  of  courts 
and  police  forces.  At  a  recent  International  Con- 
gress of  Criminal  Anthropology  it  was  stated  that 
the  amount  of  money  now  spent  by  society  for  the 
detection  and  punishment  of  crime  amounts  to  over 
$400,000,000  annually,  an  amount  sufficient,  if  ex- 
pended in  a  proper  manner,  to  banish  absolute  want 
from  amongst  us.  Mr.  Boies  in  a  comparatively 
recent  work  has  declared  that  in  1890  the  cost  of 
the  penal,  reformatory,  and  charitable  institutions  of 
the  state  of  Pennsylvania  alone  was  equal  to  the 
burden  of  a  bonded  debt  of  $275,000,000  bearing 
interest  at  four  per  cent. 


322  SOCIAL   JUSTICE 

Examining  the  theories  which  have  been  brought 
forward  by  ethicists  in  justification  of  punishment, 
we  find  that  they  may  be  described  as :  (1)  Retribu- 
tive, (2)  Deterrent,  (3)  Preventive,  and  (4)  Reform- 
atory, respectively.  In  determining  the  value  of 
these  theories  it  will  be  necessary,  as  was  the  case  in 
reference  to  the  theories  of  justice  as  applied  to  the 
distribution  of  rewards,  to  consider  them  not  only 
from  the  standpoint  of  abstract  justice,  but  as  to  the 
possibility  of  realizing  them  in  practice. 

The  Retributive  Theory.  —  Beginning  with  the 
retributive,  or  as  it  may  also  be  called,  the  vindic- 
tive, or  expiative,  theory,  it  is  to  be  observed  first  of 
all  that,  in  the  strict  sense  of  the  word,  only  that 
pain  may  be  spoken  of  as  punishment  which  is  im- 
posed simply  and  solely  for  the  sake  of  the  pain  to 
be  felt  by  the  one  punished.  According  to  the  re- 
tributive theory,  through  punishment  the  offender 
expiates  his  offence,  suffers  retribution  for  the  evil 
which  has  been  done,  and  thus  is  vindicated  the 
principle  of  justice  which  has  been  violated.  Thus 
says  Godwin,  in  his  Political  Justice,  "  Punishment 
is  generally  used  to  signify  the  voluntary  infliction 
of  evil  upon  a  vicious  being,  not  merely  because  the 
public  good  demands  it,  but  because  there  is  appre- 
hended to  be  a  certain  fitness  and  propriety  in  the 
nature  of  things  that  render  suffering  abstractly, 
from  the  benefit  to  result,  the  suitable  concomitant 
of  vice."  ^ 

Accepting  this  definition  which  Godwin  gives  us 

1  Op.  cit.,  p.  230. 


puisriTiVE  JUSTICE  323 

as  the  true  meaning  of  punishment,  it  is  necessary 
to  hold  that,  in  so  far  as  a  penalty  is  imposed  for  any 
other  than  a  vindictive  object,  as,  for  example,  for 
the  sake  of  deterrence,  prevention,  reformation,  or 
social  protection,  it  ceases  to  be  punishment  at  all. 
For  all  of  these  other  objects  have  a  reference  to 
some  good  that  is  to  be  secured  in  the  future ; 
whereas  the  retributive  theory,  by  its  very  nature, 
looks  wholly  to  the  past.  According  to  it,  pain  is 
inflicted,  not  in  order  that  some  advantage  may 
accrue  in  the  future,  but  because  some  wrong  has 
been  done  in  the  past. 

We  have,  then,  to  ascertain  the  circumstances,  if 
any  there  be,  under  which  it  is  ethically  allowable 
for  one  not  only  to  determine  for  another  the  pro- 
priety of  his  acts,  but  to  visit  upon  such  a  one  pun- 
ishment in  case  he  commits  acts  that  have  been 
declared  mala  jorohibiia. 

The  idea  of  retribution  or  expiation  can  apply  only 
as  between  rational  beings.  It  is  true  that  Great 
Nature  [Natura  Naturans)  is  often  spoken  of  as 
inflicting  punishment  and  even  as  destroying  those 
who  violate  her  laws.  But  such  language  cannot 
be  considered  strictly  correct.  Indeed,  the  very  idea 
of  violating  a  law  of  nature  is  an  improper  one.  The 
so-called  laws  of  nature  are  but  statements  of  uni- 
formities of  experience  in  the  phenomenal  world.  As 
such  they  are  not  in  any  true  sense  commands,  and 
are  not  possible  of  violation  by  men.  Certain  results, 
so  far  as  our  experience  goes,  are  known  to  follow 
from  certain  causes.     That  is  all.     There  is  no  law- 


324  SOCIAL   JUSTICE 

give-r  to  be  offended.  There  is  not  necessarily  pres- 
ent any  idea  of  wickedness,  nor  do  the  elements  of 
intention  and  moral  responsibility  necessarily  play  a 
part  when,  as  a  consequence  of  a  certain  state  of 
facts,  certain  results,  disagreeable  or  otherwise,  are 
experienced  by  particular  individuals  or  communities. 
But  in  order  that  the  retributive  theory  may  have 
standing  at  all,  these  elements  must  appear.  Accord- 
ing to  the  theory,  one  is  punished  because  he  is  sup- 
posed to  have  done  a  moral  wrong,  that  is,  to  have 
committed  not  simply  a  formal  or  legal  wrong,  but 
to  have  sinned  in  the  sight  of  the  power  that  pun- 
ishes him.  But  only  that  one  can  be  said  to  have 
sinned  who  has  freely  committed  the  reprobated  act, 
and  who,  furthermore,  at  the  time  of  its  commission 
has  been  mentally  qualified  to  judge  regarding  the 
character  of  the  act  committed  and,  being  so  quali- 
fied, actually  intended  to  commit  it.  -*' 

Having  defined  now  what  is  meant  by  punishment 
in  its  proper  retributive  or  expiative  sense,  we  come 
to  the  vital  question  whether  a  true  system  of  ethics 
requires,  or  even  permits,  the  existence  of  a  right  to 
inflict  pain  for  this  purpose.  In  short,  can  there  be 
stated  any  rational  ground  for  declaring  that  justice 
demands,  under  any  conceivable  conditions,  that  pain 
should  be  inflicted  when  no  possible  future  good  can 
result  ?  If  we  answer  "  No,"  we  of  course  deny  that 
the  idea  of  punishment,  in  its  proper  sense,  should 
play  any  part  whatsoever  in  our  systems  of  ethics. 

Among  English  writers  Godwin  has  perhaps  most 
strongly    asserted    the    invalidity,    and   in   fact    the 


PUNITIVE  JUSTICE  325 

absolute  cruelty,  of  the  retributive  view  of  punish- 
ment. After  calling  attention  to  the  idea  sometimes 
held  that  Nature  herself  teaches  us  that  suffering 
should  be  annexed  to  vice,  he  continues:  "Argu- 
ments of  this  sort  must  be  listened  to  with  great 
caution.  It  was  by  reasonings  of  a  similar  nature 
that  our  ancestors  justified  the  practice  of  religious 
persecution.  *  Heretics  and  unbelievers  are  the  ob- 
jects of  God's  indignation ;  it  must  therefore  be  mer- 
itorious in  us  to  maltreat  those  whom  God  has 
cursed.'  We  know  too  little  of  the  universe,  are 
too  liable  to  error  respecting  it,  and  see  too  small  a 
portion  of  the  whole,  to  entitle  us  to  form  our  moral 
principles  upon  an  imitation  of  what  we  conceive  to 
be  the  course  of  nature."  In  truth,  as  Godwin  says, 
the  fact  is  that  in  general  we  call  that  vicious  to 
which  the  laws  of  nature  annex  suffering,  and  thus 
the  viciousness  attaches  because  of  the  consequential 
pain,  rather  than  vice  versa.  "  Thus  it  appears, 
whether  we  enter  philosophically  into  the  principles 
of  human  actions,  or  merely  analyze  the  ideas  of 
rectitude  and  justice  which  have  the  universal  con- 
sent of  mankind,  that,  accurately  speaking,  there  is 
no  such  thing  as  desert.  It  cannot  be  just  that  we 
should  inflict  suffering  on  any  man,  except  so  far  as 
it  tends  to  good.  Hence  it  follows  that  the  strict 
acceptation  of  the  word  '  punishment '  by  no  means 
accords  with  any  sound  principles  of  reasoning.  It 
is  right  that  I  should  inflict  suffering  in  any  case 
where  it  can  be  clearly  shown  that  such  infliction  will 
produce  an  overbalance  of  good.     But  this  infliction 


326  SOCIAL  JUSTICE 

bears  no  reference  to  the  mere  innocence  or  guilt  of 
the  person  upon  whom  it  is  made.  An  innocent  man 
is  the  proper  subject  of  it,  if  it  tend  to  good.  A 
guilty  man  is  the  proper  subject  of  it  under  no  other 
point  of  view.  To  punish  him  upon  any  other  hy- 
pothesis for  what  is  past  and  irrecoverable  and  for 
the  consideration  of  that  only,  must  be  ranked  among 
the  wildest  conceptions  of  untutored  barbarism."  ^ 

The  remarkable  declaration  which  Godwin  makes, 
that,  "  accurately  speaking,  there  is  no  such  thing  as 
desert,"  requires  some  explanation.  This  assertion 
is  based  upon  Godwin's  deterministic  ethics,  accord- 
ing to  which  freedom  of  the  will  and  moral  responsi- 
bility in  the  agent  are  flatly  denied.  On  the  page 
preceding  that  from  which  our  quotation  is  taken 
he  says,  "  The  assassin  cannot  help  the  murder  any 
more  than  the  dagger  [with  which  the  deed  is  com- 
mitted]." 

If  this  be  so,  if  the  individual  be  the  helpless  prey 
of  circumstances,  then  of  course  no  such  thing  as 
ethical  desert  is  possible.  And  if,  as  Godwin  be- 
lieves, the  greatest  happiness  is  the  greatest  good, 
no  distribution  either  of  rewards  or  penalties  is 
justified  except  as  it  tends  to  advance  the  realization 
of  that  good. 

That  philosopher  who,  among  modern  writers,  has 
defended  most  absolutely  the  retributive  theory  of 
punishment,  is  Kant.  His  views  upon  this  point 
are  to  be  found  in  his  Rechtslehre} 

1  Political  Justice,  Book  VIT,  Chapter  I. 

2  Translated  by  Hastie  under  the  title  Philosophy  of  Law. 


PUNITIVE   JUSTICE  327 

"Judicial  punishment,"  says  Kant,  "can  never  be 
administered  merely  as  a  means  for  promoting  another 
good,  either  with  regard  to  the  criminal  himself  or  to 
civil  society,  but  must  in  all  cases  be  imposed  only 
because  the  individual  on  whom  it  is  inflicted  has 
committed  some  crime.  For  one  man  ouo;ht  never 
to  be  dealt  with  merely  as  a  means  subservient  to 
the  purpose  of  another,  nor  be  mixed  up  with  the 
subjects  of  real  right.  Against  such  treatment  his 
inborn  personality  has  a  right  to  protect  him,  even 
although  he  may  be  condemned  to  lose  his  civil 
personality.  He  must  first  be  found  guilty  and 
punishable,  before  there  can  be  any  thought  of 
drawing  from  his  personality  any  benefit  for  him- 
self or  his  fellow-citizens.  The  penal  law  is  a 
categorical  imperative ;  and  woe  to  him  who  creeps 
through  the  serpent-windings  of  utilitarians  to  dis- 
cover some  advantage  that  may  discharge  him  from 
the  justice  of  punishment  or  even  from  the  due 
measure  of  it  according  to  the  Pharisaic  maxim : 
*  It  is  better  that  one  man  should  die  than  that 
the  whole  people  should  perish.'  For  if  Justice 
and  Righteousness  perish,  human  life  would  no 
longer  have  any  value  in  the  world.  What,  then, 
is  to  be  said  of  such  a  proposal  as  to  keep  a  crimi- 
nal alive  who  has  been  condemned  to  death,  on  his 
being  given  to  understand  that  if  he  agreed  to  cer- 
tain dangerous  experiments  being  performed  upon 
him,  he  would  be  allowed  to  survive  —  if  he  come 
happily  through  them  ?  It  is  argued  that  physicians 
might  thus  obtain  new  information  that  would  be  of 


328  SOCIAL  JUSTICE 

value  to  the  commonweal.  But  a  court  of  justice 
would  repudiate  with  scorn  any  proposal  of  this 
kind  if  made  to  it  by  the  medical  faculty;  for 
justice  would  cease  to  be  justice,  if  it  were  bar- 
tered away  for  any  consideration  whatever."  ^ 

Kant  makes  this  repudiation  of  the  utilitarian 
element  still  more  emphatic,  when  he  declares : 
"  Even  if  a  civil  society  resolved  to  dissolve  itself 
with  the  consent  of  all  its  members,  —  as  might 
be  supposed  in  the  case  of  a  people  inhabiting  an 
island  resolving  to  separate  and  scatter  themselves 
throughout  the  whole  world,  —  the  last  murderer 
living  in  prison  ought  to  be  executed  before  the 
resolution  was  carried  out.  This  ought  to  be  done 
in  order  that  every  one  may  realize  the  desert  of 
his  deeds,  and  that  blood-guiltiness  may  not  remain 
upon  the  people ;  for  otherwise  they  might  all  be 
regarded  as  participators  in  the  murder  as  a  public 
violation  of  Justice."  ^ 

The  vindictive  theory  is  accepted  by  Kant  not  only 
as  furnishing  the  motive  for  punishment,  but  as  dic- 
tating the  character  of  the  penalty  to  be  imposed 
in  each  case.  The  doctrine  of  lex  talionis  is  to 
be  applied  without  reservation.  "  This  right,"  he 
says,  "  is  the  only  principle  which  in  regulating  a 
public  court,  as  distinguished  from  mere  private 
judgment,  can  definitely  assign  both  the  quality  and 
the  quantity  of  a  first  penalty.  All  other  standards 
are  wavering  and  uncertain ;  and  on  account  of 
other  considerations  involved  in  them,  they  contain 

1  Op.  cit.,  p.  195.  2  Jdem,  p.  198. 


PUNITIVE   JUSTICE  329 

no  principle  conformable  to  the  sentence  of  pure  and 
strict  justice."  ^ 

Let  us  see  now  what  theoretical  justification  Kant 
offers  for  his  theory.  It  is,  in  short,  that  the 
criminal  by  the  deliberate  commission  of  his  deed 
has,  in  effect,  accepted  as  valid  the  principle  involved 
in  the  deed.  Therefore,  says  Kant,  if  that  same 
principle  be  applied  by  society  to  him,  he  is  in 
reality  but  subjected  to  a  rule  of  conduct  which,  by 
his  own  conduct,  he  has  declared  to  be  a  valid  one. 
Thus,  in  answer  to  the  argument  made  by  Beccaria 
against  the  rightfulness  of  capital  punishment,  that 
it  cannot  be  conceived  that  in  the  original  civil 
compact  the  individual  could  or  would  have  con- 
sented thus  to  dispose  of  his  own  life,  Kant  replies : 
"  No  one  undergoes  punishment  because  he  has 
willed  to  be  punished,  but  because  he  has  willed  a 
punishable  action;  for  it  is,  in  fact,  no  punishment 
when  one  experiences  what  he  wills  ;  and  it  is  im- 
possible for  any  one  to  will  to  be  punished.  To  say, 
^  I  will  to  be  punished,  if  I  murder  any  one,'  can 
mean  nothing  more  than,  '  I  submit  myself  along 
with  all  the  other  citizens  to  the  laws  ' :  and  if  there 
are  any  criminals  among  the  people,  these  laws  will 
include  criminal  laws.  The  individual  who,  as  a 
co-legislator,  enacts  penal  law,  cannot  possibly  be 
the  same  person  who,  as  a  subject,  is  punished  accord- 
ing to  the  law ;  for,  qua  criminal,  he  cannot  possi- 
bly be  regarded  as  having  a  voice  in  the  legislation, 
the   legislator   being  rationally  viewed  as  just   and 

1  Op.  cit.,  p.  196. 


330  SOCIAL  JUSTICE 

holy.  If  any  one,  then,  enact  a  penal  law  against 
himself  as  a  criminal,  it  must  be  the  pure  juridically 
law-giving  reason  [homo  nomnenon)  which  subjects 
him  as  one  capable  of  crime,  and  consequently  as 
another  person  [homo  phenomenon),  along  with  all 
the  others  in  the  civil  union,  to  this  penal  law.  In 
other  words,  it  is  not  the  people  taken  distributively, 
but  the  tribunal  of  public  justice  as  distinct  from  the 
criminal,  that  prescribes  capital  punishment;  and 
it  is  not  to  be  viewed  as  if  the  social  compact  con- 
tained the  promise  of  all  the  individuals  to  allow 
themselves  to  be  punished,  thus  disposing  of  them- 
selves and  their  lives.  For  if  the  right  to  punish 
must  be  founded  upon  a  promise  to  the  wrong-doer, 
whereby  he  is  to  be  regarded  as  being  willing  to  be 
punished,  it  ought  also  to  be  left  to  him  to  find 
himself  deserving  of  the  punishment ;  and  the  crimi- 
nal would  thus  be  his  own  judge.  The  chief  error 
of  this  sophistry  consists  in  regarding  the  judgment 
of  the  criminal  himself,  necessarily  determined  by 
his  reason,  that  he  is  under  obligation  to  undergo 
the  loss  of  his  life,  as  a  judgment  that  must  be 
founded  on  a  resolution  of  his  will  to  take  it  away 
himself ;  and  thus  the  execution  of  the  right  in  ques- 
tion is  represented  as  united  in  one  and  the  same 
person  with  the  adjudication  of  the  right."  ^ 

^  Op.  cit.,  pp.  201-202.  Mr.  F.  N.  Bradley,  in  his  Ethical  Studies, 
published  in  1876,  assumes  very  clearly  the  retributive  theory  of  pun- 
ishment. Thus  he  says  (pp.  25-26) :  "  We  pay  the  penalty  because 
we  owe  it,  and  for  no  other  reason;  and  if  punishment  is  inflicted 
for  any  other  reason  whatever  than  because  it  is  merited  by  wrong, 
it  is  a  gross   immorality,  a  crying   injustice,  an  abominable  crime, 


PUNITIVE   JUSTICE  331 

What  validity  is  there  in  this  reasoning  of  Kant? 
Only  this  much,  we  think.  It  furnishes  a  satisfactory 
answer  to  that  school  of  thinkers  who,  having  not 
yet  thoroughly  rid  themselves  of  the  social-compact 
and  natural-right  theories,  declare  that  all  social  or 
political   control   over  the  individual,  needs,  for  its 

and  not  what  it  pretends  to  be.  We  may  have  regard  for  whatever 
considerations  we  please,  —  our  own  convenience,  the  good  of  society, 
the  benefit  of  the  offender,  —  we  are  fools  and  worse,  if  we  fail  to  do 
so.  Having  once  the  right  to  punish,  we  may  modify  the  punishment  j 
according  to  the  useful  and  the  pleasant,  but  these  are  external  to  j 
the  matter;  they  can  give  us  no  right  to  punish,  and  nothing  can  do 
that  but  criminal  desert.  —  Yes,  in  spite  of  sophistry,  and  in  the  face/ 
of  sentimentalism,  with  well-nigh  the  whole  body  of  our  self-styled  [ 
enlightenment  against  them,  our  people  believe  to  this  day  that 
punishment  is  inflicted  for  the  sake  of  punishment."  Writing  nearly 
twenty  years  later,  however,  Mr.  Bradley  substantially  modifies  this 
view,  though  he  does  not  admit  it.  In  an  article  entitled  Some 
Remarks  on  Punishment,  contributed  to  the  International  Journal  of 
Ethics  (Vol.  IV,  p.  269),  he  says,  after  avowing  his  continued  adhe- 
rence to  the  doctrine,  "  But  then  this  retributive  view  pure  and 
simple  will  not  work  —  will  not  work  because  of  the  impossibility 
of  determining  the  degree  of  guilt.  Therefore,  having  secured,  as  we 
believe,  the  right  to  punish,  we  give  weight  also  to  other  considera- 
tions. We  modify  our  sentence  with  an  eye  to  the  general  good. 
We  make  an  example  or,  on  the  other  hand,  we  let  mercy  or  policy 
more  or  less  abridge  strict  justice.  But  with  this  the  retributive 
principle  has  ceased  to  be  absolute.  Punishment  has  ceased  to  be 
an  affair  of  justice,  and  we  have  been  forced  to  recognize  a  superior 
duty  to  be  unjust.  W^e  have  not,  indeed,  given  up  the  idea  of  retri- 
bution and  desert,  but  we  have  made  it  secondary,  and  subject  to 
the  chief  end  of  the  general  welfare."  Pushing  still  further  this  idea, 
as  he  says,  of  being  forced  by  the  general  welfare  to  be  unjust,  he 
shows  that  *'to  remove  the  innocent  is  unjust,  but  it  is  not,  perhaps, 
therefore  in  all  cases  wrong.  Their  removal,  on  the  contrary,  will 
be  right  if  the  general  welfare  demands  it."  It  would  seem  too  clear 
for  argument  that  Mr.  Bradley  here  definitely  abandons  the  retribu- 
tive for  the  utilitarian  theory ;  yet,  in  a  note  added  in  answer  to 
a  criticism  of  Mr.  Rashdall,  he  declares  that  he  has  "  little  to 
correct  in  the  old  statement  of  my  [his]  view  except  a  certain  num- 
ber of  one-sided  and  exaggerated  expressions." 


332  SOCIAL  JUSTICE 

justification,  the  consent  of  the  individual.  It  is 
correct  to  say  that  in  the  commission  of  any  given 
deed,  the  criminal  logically  accepts  as  a  valid  rule 
of  conduct  the  principle  involved  in  his  act,  and 
therefore  that  he  cannot  justly  complain  if  society 
see  fit  to  subject  him  to  the  operation  of  the  same 
rule  that  he  has  already  applied  in  his  conduct 
toward  others.  But  this  is  all.  Kant's  reasoning 
does  not  have  any  bearing  upon  the  arguments  of 
those  who  hold  the  views  which  we  have  accepted 
in  this  work.  Kant  says :  "  Man  ought  never  to 
be  dealt  with  merely  as  a  means  subservient  to  the 
purpose  of  another.  .  .  .  Against  such  treatment 
his  inborn  personality  has  a  right  to  protect  him." 
This  principle  is  a  very  true  one,  and  in  fact  consti- 
tutes, as  we  know,  the  fundamental  fact  of  social 
justice,  but  it  does  not  mean  that  the  infliction  of 
an  evil  upon  a  person,  in  order  that  some  future 
social  good  may  be  achieved,  is  necessarily  a  con- 
travention of  it. 

Kant  says  that  a  person  should  never  be  treated 
merely  as  a  means.  But  a  person  is  treated  merely  as 
a  means  only  when  his  right  to  be  considered  as  an 
end  is  wholly  ignored.  Now,  when  it  becomes  nec- 
essary in  the  interest  of  society  to  inflict  an  evil 
upon  an  individual,  that  individual  is  qua  hoc  treated 
as  a  means ;  but  he  is  also  treated  as  an  end,  if  in 
estimating  the  social  good  his  individual  good  is 
considered,  and  in  the  selection  of  him  for  punish- 
ment the  choice  has  been  controlled  by  empiric 
facts  which  make  it  productive  of  more  good  that 


PUNITIVE  JUSTICE  333 

he,  rather  than  any  one  or  no  one  else,  should  be 
punished.  Thus,  just  as,  according  to  this  interpre- 
tation of  the  sanctity  of  human  personality,  guilti- 
ness of  crime  cannot  of  itself  justify  the  infliction 
of  pain ;  so,  conversely,  when  the  social  good  de- 
mands, innocence  from  wrong-doing  cannot  always 
relieve  one  from  the  duty  of  subjecting  himself  to, 
or  release  society  from  the  obligation  of  imposing, 
an  evil  which  in  extreme  cases  may  amount  even 
to  death.  As  Rashdall  has  well  put  it :  ^'  When  a 
man  is  punished  in  the  interest  of  society,  he  is 
indeed  treated  as  a  means,  but  his  right  to  be 
treated  as  an  end  is  not  thereby  violated,  if  his 
good  is  treated  as  of  equal  importance  with  the  end 
of  other  human  beings.  Social  life  would  not  be 
possible  without  the  constant  subordination  of  the 
claims  of  individuals  to  the  like  claims  of  a  greater 
number  of  individuals ;  and  there  may  be  occasions 
when  in  punishing  a  criminal  we  have  to  think 
more  of  the  good  of  society  generally  than  of  the 
individual  who  is  punished.  .  .  .  The  retributive 
view  of  punishment,  however,  justifies  the  infliction 
of  evil  upon  a  living  soul,  even  though  it  will  do 
neither  him  nor  any  one  else  any  good  whatever. 
If  it  is  to  do  anybody  any  good,  punishment  is  not 
inflicted  for  the  sake  of  retribution.  It  is  the  retrib- 
utive theory,  to  my  mind,  which  shows  a  disrespect 
for  human  personality  by  proposing  to  sacrifice 
human  life  and  human  well-being  to  a  lifeless  fetich 
styled  the  Moral  Law,  which  apparently,  though  un- 
conscious, has  a  sense  of  dignity,  and  demands  the 


834  SOCIAL  JUSTICE 

immolation  of  victims  to  avenge  its  injured  amour 
jjrojjre."  ^ 

The  incorrectness  of  tlie  retributive  theory  of 
punishment  becomes  manifest  when  we  consider  the 
/  [  results  to  which  an  attempt  to  apply  it  in  practice 
would  necessarily  lead.  In  the  first  place,  it  would 
render  impossible  any  penal  law  whatever,  for  it 
would  never  be  possible  for  courts  to  gain  that 
knowledge  which  the  theory  demands  for  the  just 
apportioning  of  penalties.  When  reduced  to  their 
proper  meaning,  the  words  retribution,  expiation,  or 
vindication,  mean  the  bringing  home  to  the  criminal 
the  legitimate  consequences  of  his  conduct,  that  is, 
legitimate  from  the  ethical  standpoint.  But  this, 
of  course,  involves  the  determination  of  the  degree  of 
his  moral  responsibility,  a  task  that  is  an  impossibil- 
ity for  any  legal  tribunal.  Conditions  of  knowledge, 
of  heredity,  of  training,  of  opportunities  for  moral 
development,  of  social  environment  generally,  and 
of  motive  have  to  be  searched  out,  which  are  beyond 
even  the  ability  of  the  criminal  himself  to  determine, 
—  far  less  of  others,  —  before  even  an  approximate 
estimate  can  be  made  of  the  simplest  act.  But  even 
could  this  be  done,  there  would  be  no  possible 
standard  by  which  to  estimate  the  amount  of 
physical  pain  to  be  imposed  as  a  punishment  for  a 
given  degree  of  moral  guilt.  For  how  measure  a 
moral  wrong  by  a  physical  suffering  ?  Or,  granting 
what  is  inconceivable,  that  such  an  equivalence  could 

^  International   Journal    of  Ethics,   January,   1900,    article,  "  The 
Ethics  of   Forgiveness. " 


PUNITIVE   JUSTICE  335 

be  fixed  upon,  how  would  it  be  possible  to  inflict 
upon  the  culprit  just  that  amount  of  pain  which  he 
might  deserve  ?  Individuals  differ  physically  and 
mentally,  and  these  differences  are  widened  by 
training  and  methods  of  life  until  it  is  impossible 
to  determine  the  degree  of  discomfort  or  pain  that 
a  given  penalty  will  cause  a  given  individual.  The 
fear  of  death  itself  varies  widely  with  different  indi- 
viduals, and  the  same  is  true  as  to  the  estimation 
in  which  all  other  forms  of  evil  are  held.  So  far, 
therefore,  from  there  being  any  certainty  that  two 
individuals  will  be  equally  punished  who  are  sub- 
jected to  the  same  penitential  treatment,  there  is, 
in  fact,  almost  a  certainty  that  they  will  not  be. 

This  question  of  the  moral  responsibility  in  the 
criminal  which  the  retributive  theory  necessarily 
predicates,  has  been  rendered  doubly  embarrassing 
by  the  results  recently  obtained  by  the  new  school 
of  criminologists,  who  term  themselves  Criminal 
Anthropologists.  By  following  entirely  new  methods 
this  school  has  arrived  at  conclusions  as  to  the 
nature  and  causes  of  crime  differing  radically  from 
those  which  have  been  formerly  held,  and  which,  if 
they  be  proved  true,  must  result  in  almost  revolu- 
tionary changes  in  our  present  penal  methods. 

Reversing  former  methods,  this  school  has  studied 
the  criminal  rather  than  the  crime,  and  the  result  of 
the  investigations  carried  on  along  this  line  has 
been  to  bring  into  prominence  the  conception  of  the 
criminal  as  a  being  physically  and  psychically 
degenerate.     Every  crime,  no  matter  by  whom  com- 


Il 


336  SOCIAL  JUSTICE 

mitted,  or  under  what  circumstances,  is  to  be  ex- 
plained in  but  two  ways :  either  as  the  act  of  the 
individual's  free  will,  or  as  the  natural  effect  and  as 
the  necessary  result  of  social  and  physical  causes. 
Our  present  methods  of  punishment  are  based  upon 
the  idea  that  a  crime  is  the  free  act  of  a  person  who, 
actuated  by  motives  of  gain  or  passion,  deliberately 
contravenes  the  law.  Now  and  then  is  raised  in  our 
courts  the  plea  of  insanity  or  temporary  aberration 
of  mind  or  kleptomania,  but  in  the  vast  majority  of 
cases  the  criminal  is  considered  as  not  differing  in 
body  or  mentality  from  honest  men.  He  is  con- 
sidered as  wholly  responsible  for  his  own  act  and  is 
punished  accordingly. 

/  According  to  the  new  school  of  criminal  anthro- 
pology, this  theory  of  crime  and  its  punishment  is 
radically  wrong.  Crime,  its  members  say,  is  in  the 
great  majority  of  cases  due  to  disease,  to  a  mental 
state  of  the  criminal  which  predisposes  him  to  the 
commission  of  illegal  acts.  The  study  that  has  been 
made  of  the  brain  and  mental  peculiarities  of  those 
convicted  of  criminal  offences  clearly  proves  this, 
they  say,  to  be  so.  This  being  so,  our  penal 
methods  should  look  primarily  to  the  cure  of  the 
criminal  and  not  to  his  punishment.  No  man,  what- 
ever his  offence,  should  be  discharged  from  restraint 
except  upon  reasonable  evidence  that  he  is  morally, 
intellectually,  and  physically  capable  of  leading  an 
honest  life.  It  may  sound  strange,  but  it  is  alleged 
that  it  is  correct  to  say  that  it  is  as  natural  for  some 
people  to  commit  crime  when  under  provocation  or 


PUNITIVE   JUSTICE  337 

temptation  as  it  is  for  a  dyspeptic  to  have  indiges- 
tion after  overeating,  or  a  rheumatic  to  suifer  from 
the  result  of  exposure.  Crime,  in  short,  is  due  to 
some  fault  in  his  organization  which  renders  the 
individual  less  able  to  withstand  temptation  or  to 
control  improper  desires.  Whenever  in  any  one's 
mental  outfit  there  is  any  maladjustment  (and  the 
doctors  tell  us  that  none  of  us  are  sound  in  every 
particular),  there  is  present  a  tendency  to  peculiari- 
ties that  affect  our  motives  and  actions.  The 
criminal  is,  therefore,  to  be  judged  as  one  whose 
mental  peculiarities  are  such  as  to  make  the  com- 
mission of  crime  more  easy  to  him  than  it  is  to 
others. 

Between  the  violently  insane,  the  idiot,  and  the 
one  whose  moral  faculties  are  merely  blunted,  and 
the  sense  of  right  and  wrong  indistinct,  there  are  all 
grades  of  criminality.  On  the  border  line  of  lunacy 
lie  the  criminal  populations.  The  criminal  has  thus 
been  defined  as  "  an  individual  whose  organization 
makes  it  difficult  or  impossible  for  him  to  live  in 
accordance  with  the  standard  which  the  civilization 
in  which  he  lives  sets  up  and  makes  it  easy  for  him 
to  risk  the  penalties  of  acting  anti-socially.  By  some 
accident  of  development,  by  some  defect  of  heredity 
or  birth  or  training,  he  belongs  as  it  were  to  a  lower 
and  older  social  state  than  that  in  wliich  he  is  actu- 
ally living.  It  thus  happens  that  our  own  criminals 
frequently  resemble,  in  physical  and  psychical  char- 
acteristics, the  normal  individuals  of  a  lower  race  " 
(Ellis). 


338  SOCIAL   JUSTICE 

The  conception  of  crime  as  due  to  defective  mental 
organization  of  the  criminal,  explains  to  us  many 
of  the  points  that  have  hitherto  perplexed  us.  In 
the  first  place,  it  gives  us  a  reason  for  the  repeated 
instances  in  which  we  find  persons  committing  crimes 
where  there  seems  to  be  no  sufficient  motive,  and 
when  it  must  be  apparent  to  the  ones  committing 
them  that  immediate  discovery  and  severe  punish- 
ment are  to  be  the  sure  result.  Murders  are  fre- 
quently committed  upon  the  most  trivial  grounds, 
and  nothing  is  more  common  than  to  find  prisoners 
who  seem  to  take  a  genuine  delight  in  thieving,  even 
though  not  in  want.  Secondly,  the  definition  of  the 
criminal  as  one  of  defective  organization,  who  is  on  a 
lower  plane  of  civilization  than  that  on  which  he  is 
actually  living,  explains  the  increase  of  crime  in 
the  face  of  an  advancing  civilization  and  a  widening 
diffusion  of  wealth  and  education. 

With  the  instincts  of  a  savage,  the  criminal  is 
forced  to  live  among  civilized  people.  "  Criminality, 
like  insanity,  waits  upon  civilization,"  says  Ellis. 
With  the  growth  of  society  in  complexity  and  deli- 
cacy, the  demands  upon  the  social  nature  of  the 
individual  become  greatly  increased.  Organized  as 
modern  society  is,  the  duties  of  the  individual  to  his 
fellow-man  and  to  society  at  large  are  immensely 
greater  than  they  are  in  savage  countries  where 
there  exist  no  mutual  rights  and  duties  outside  of 
the  family ;  where  law,  if  it  may  be  so  called,  covers 
only  a  few  points,  and  each  one  lives  only  for  him- 
self, and  his  actions  do  not  conflict  with  the  rights 


PUNITIVE   JUSTICE  339 

of  others.  So  far,  then,  as  society  has  within  its 
bounds  members  who  are  mentally  unfit  to  meet  the 
requirements  of  its  civilization,  it  will  have  violators 
against  its  laws,  and  these  it  will  have  no  matter 
what  its  economic  prosperity  or  the  severity  of  the 
punishment  meted  out  to  the  offender.  The  increase, 
then,  in  crime  which,  as  we  shall  presently  see,  is  as- 
serted by  some,  may  be  said  to  be  due  to  the  fact 
that,  as  the  demands  of  civilization  have  increased, 
the  chances  of  having  members  of  the  State  who  are 
not  able  to  meet  these  standards  have  increased ;  and 
this  increase  our  penal  methods,  aiming  at  punish- 
ment rather  than  at  cure,  have  not  been  able  to 
check.  Modern  civilization  represents  the  last  and 
final  efforts  of  the  wisest,  and  with  its  development 
there  is  an  increasing  need  of  proper  treatment  of, 
and  assistance  to,  those  who  are  by  organization 
unqualified  to  keep  pace  with  it  on  its  onward 
march. 

Again,  the  conception  of  crime  as  due  to  patho- 
logical condition  explains  the  difficulty  of  reforming 
criminals.  It  explains  also  why  our  methods  of 
punishment  seem  to  have  so  little  deterrent  effect. 
It  is  because  they  have  no  power  to  reform  the  dis- 
eased condition  of  the  prisoner's  mind,  and  are  not 
imposed  for  that  purpose.  As  showing  how  little 
really  deterrent  effect  even  the  severest  punishments 
have,  Rev.  W.  Roberts,  chaplain  of  Bristol  jail,  says 
that  out  of  167  attended  by  him  under  sentence  of 
death,  164  had  witnessed  hangings.  George  III 
added  156  crimes  to  the  list  of  67  which  had  already 


340  SOCIAL  JUSTICE 

been  made  capital  crimes,  with  a  result  that  from 
1806  to  1819,  during  which  time  this  code  remained 
unchanged,  the  number  of  indictable  offences  in- 
creased threefold.  "  If  deterrence  enters  as  an  ele- 
ment into  the  calculation  of  habitual  criminals," 
says  Mr.  Dugdale,  "  it  acts  chiefly  as  a  stimulant  for 
contriving  new  methods  by  which  the  penalty  may 
be  avoided." 

Finally,  the  hereditary  nature  of  criminality  shows 
its  character  as  a  disease.  The  investigations  of 
experts  leave  no  room  for  doubt  upon  this  point. 
Mr.  Morrison  states  that  the  statistics  that  he  has 
collected  show  that  more  than  one-fourth  of  crimi- 
nals have  received  a  defective  organization  from 
their  ancestry;  and  further,  that  between  forty  and 
fifty  per  cent  of  convictions  for  murder  are  cases 
in  which  the  murderer  is  either  insane  or  mentally 
infirm.  The  most  startling  and  conclusive  proofs  of 
the  inheritability  of  criminal  tendencies  have  been 
furnished  by  the  American  investigators  Mr.  Dug- 
dale, in  his  famous  study  The  Jukes,  and  Mr.  McCul- 
loch,  in  his  book  upon  The  Tribe  of  Ishmael. 
The  results  of  these  two  investigators  have  become 
so  well  known  as  not  to  need  repetition  here. 

With  what  success  modern  criminal  anthropol- 
ogists have  succeeded  in  discovering  and  describing 
distinct  criminal  types,  is  a  matter  open  to  con- 
troversy.^ But  one  point  they  do  appear  to  have 
established,   and  this    is   that   physical   and   mental 

1  For  a  very  able  criticism  of  this  school,  see  the  work  of  Proal, 
Le  Crime  et  la  Peine. 


PUNITIVE   JUSTICE  341 

abnormalities  are  far  more  frequently  discovered  in 
the  habitual  criminal  than  in  the  ordinary  man. 

The  point  which  is  of  special  interest  to  us  in  all 
this  is  that,  just  to  the  extent  to  which  the  thesis  is 
maintained  that  crime  is  due  to  disease,  in  corre- 
sponding degree  should,  according  to  the  retributive 
theory,  the  severity  of  punishment  be  relaxed ;  and 
where  the  will  is  discovered  entirely  impotent  to 
restrain  the  instincts  and  desires  of  a  diseased  mind 
and  body,  punishment  should  be  wholly  remitted. 
If,  then,  to  the  amount  of  irresponsibility  traceable 
to  this  source,  we  should  join  that  which  is  directly 
traceable  to  improper  social  environment  (for  which 
society  is  itself  largely  responsible),  we  would  find, 
according  to  the  retributive  theory,  that  it  would  be 
practically  impossible  definitely  to  determine  even 
the  presence,  much  less  the  degree,  of  that  moral 
responsibility  upon  which  the  right  to  punish  is 
founded.  And  thus  there  would  logically  arise  the 
necessity  of  declaring  the  non-amenability  to  punish- 
ment (though  not  to  treatment)  of  that  most  danger- 
ous of  all  social  types,  the  "  instinctive  criminal." 

Another  objection  to  the  retributive  theory  is  the 
point  which  Fichte  makes,  that  in  attempting  the 
punishment  of  crimes  as  sins,  men  are  arrogating  to 
themselves  the  ability  and  the  right  to  determine  for 
others  not  simply  what,  as  a  matter  of  fact,  society 
or  the  State  will  allow  them  to  do,  but  what  is  for 
them  morally  right  or  wrong.  "  The  question  is  not 
at  all  whether  the  murderer  suffers  unjustly  when  he 
also  loses  his  life  in  a  violent  manner,"  says  Fichte, 


342  SOCIAL   JUSTICE 

"  but  the  question  is :  Whence  does  any  other  mortal 
derive  the  right  to  personify  this  moral  rule  of  the 
world,  and  to  punish  the  criminal  according  to  his 
deserts  ?  A  system  which  asserts  the  supreme  ruler 
of  a  State  to  have  this  right  is  undoubtedly  com- 
pelled to  say  that  the  title  to  it  is  beyond  demonstra- 
tion, and  hence  to  call  it  a  right  given  by  God. 
Such  a  system  is,  therefore,  bound  to  consider  the 
monarch  as  the  visible  representative  of  God  in  this 
world,  and  to  consider  all  government  as  a  theocracy. 
In  the  Jewish  theocracy  the  doctrine  was,  therefore, 
eye  for  eye,  tooth  for  tooth,  and  very  properly."  ^ 

1  Science  of  Rights  (translation  of  Kroeger),  p.  371.  Fichte  in  this 
takes  a  ground  radically  different  from  that  assumed  by  Kant,  and  in 
fact,  except  where  he  is  influenced  by  his  conception  of  a  social  com- 
pact, approaches  very  nearly  our  own  views.  "  Punishment,"  he  says, 
"is  not  an  absolute  end.  In  fact,  the  proposition  that  punishment  is 
an  end  for  itself,  as  is,  for  instance,  involved  in  the  expression  '  He 
who  has  killed  mus^  die,'  is  positively  meaningless.  Punishment  is 
merely  a  means  for  the  end  of  the  State  'to  maintain  public  security,' 
and  the  only  intention  in  providing  punishment  is  to  prevent  by  threats 
transgressions  of  the  law.  The  end  of  all  penal  laws  is  that  they  may 
not  be  applied." 

Fichte,  to  be  sure,  goes  on  to  hold  that  the  punishment  should,  as 
far  as  possible,  be  made  equal  to  the  crime, — poena  inlionis,  —  but  he 
does  so  not  upon  vindictive  grounds,  but  upon  the  simple  utilitarian 
theory  that  thus  the  penal  law  exercises  its  greatest  deterrent  effect. 
In  fact,  as  he  admits,  the  principle  cannot  be  applied  at  all  in  cases 
where,  as  he  expresses  it,  the  will  of  the  transgressor  is  formaliler  evil ; 
that  is,  where  the  violation  of  the  law  is  done  not  for  the  sake  of  get- 
ting possession  of  another  person's  goods,  but  merely  for  the  sake  of 
injuring  the  other.  Here,  then,  is  a  case  where  the  sentiments  and 
intentions  of  the  crime  must  be  taken  notice  of.  "  Nevertheless,'* 
Fichte  hastens  to  add,  "  it  should  not  be  held  that  this  is  a  case 
wherein  the  morality  of  the  act  is  to  be  considered.  No  man  can  and 
no  man  should  be  the  judge  of  another's  morality.  The  only  object 
of  civil  punishment,  and  the  only  measure  of  its  degree,  is  the  possi- 
bility of  public  security.  Violations  of  the  law  prompted  by  mali- 
cious intentions  are  to  be  punished  more  severely  than  violations 


PUNITIVE    JUSTICE  343 

That,  as  Fichte  says,  there  is  hidden  in  the  retrib- 
ntive  theory  the  premise  that  those  in  authority  are 
endowed  with  the  right  not  only  to  pass  moral  judg- 
ment upon  the  conduct  of  those  subject  to  its  author- 
ity, but  to  act  as  the  instruments  for  visiting  upon 
sinners  that  evil  which  by  divine  order  should  be 
attached  to  moral  wrong,  becomes  very  evident  in 
the  doctrine  as  declared  by  the  Rt.  Hon.  Sir  E.  Frey,^ 
and  as  repeated  by  Mr.  Justice  Kennedy  of  the 
Queen's  Bench,  England.^ 

inspired  by  selfish  motives;  not  because  they  are  more  immoral, — 
morality,  indeed,  has  no  degrees,  and  there  is  only  one  morality,  —  but 
because  fear  of  a  milder  punishment,  a  punishment  simply  of  equal 
loss,  would  not  afford  adequate  security." 

For  a  further  discussion  of  the  retributive  theory,  see  Vidal,  Prin- 
cipes  fondamenfaux  de  la  Pennlile  dans  les  systemes  les  plus  modernes, 
pp.  264-293 ;  Franck,  Philasophie  du  droit  penal,  Part  I,  Chapters  VI 
and  VII;  and  Fouillee,  Science  sociale  contemporaine,  Book  IV,  Chap- 
ter III.  Fouillee  is  especially  emphatic  in  his  repudiation  of  the 
theory.  He  denies,  and  with  justness  we  think,  that  rationally  there 
can  be  predicated  of  a  God  himself,  considered  as  a  just  and  loving 
Father,  the  right,  or  much  less  the  disposition,  to  inflict  a  punish- 
ment for  its  own  sake;  that  is,  without  reference  to  any  possible 
future  good  to  the  one  punished.  The  good  should  be  happy,  Fouillee 
says,  for  all  human  beings  should,  if  possible,  be  happy;  but  the  bad 
.should  not  necessarily  be  unhappy,  for  no  one  should  be  unhappy 
without  sufficient  reason.  What  suifering  there  should  be  as  a  result 
of  sin,  says  Fouillee,  should  be  mental ;  that  is,  in  the  conscience,  and 
this  should  be  voluntary  regret,  not  one  based  on  resulting  evil  that 
the  law  has  inflicted.  "  S'il  y  a  un  Dieu,  re'pe'tons-le,  ce  Dieu  lui-meme 
n'a  pas  le  droit  de  punir.  En  effet,  de  deux  chases  Pune :  ou  le  mal 
moral  est  un  mal  par  lui-meme,  et  alors  il  est  inutile  d'y  aj outer  une  peine 
exte'rieure  non  motivee  par  une  legitime  defense :  ou  le  mal  moral  nest  pas 
un  mal  par  lui-meme,  mais  seulement  par  la  pure  volonte  de  Dieu,  sit  pro 
ratione  voluntas  et  alors  la  peine  exte'rieure  ne  serait  quun  noucel  acte  de 
despotisme  ajoute  a  une  loi  de'ja  despotique."     (3d  edition,  p.  296.) 

^  "  Inequality  in  Punishment,"  Nineteenth  Century,  1883,  p.  517. 

2  Address  before  the  American  Bar  Association,  August,  1899. 
Reprinted  in  American  Law  Reinew,  Vol.  XXXIII,  p.  731. 


344  SOCIAL   JUSTICE 

"  Punishment,"  says  Frey,  "  is  an  effort  of  man  to 
find  a  more  exact  relation  between  sin  and  suffering 
than  the  world  affords  us.  .  .  .  It  seems  to  me  that 
men  have  a  sense  of  the  fitness  of  suffering  to  sin,  .  .  . 
that  so  far  as  the  world  is  arranged  to  realize  in  fact 
this  fitness  in  thought,  it  is  right ;  and  that  so  far  as  it 
fails  of  such  arrangement  it  is  wrong,  except  so  far  as 
it  is  a  place  of  trial  or  probation;  and  consequently 
that  a  duty  is  laid  upon  us  to  make  this  relationship 
of  sin  to  suffering  as  real  and  as  actual  and  as  exact 
in  proportion  as  it  is  possible  to  be  made.  This  is 
the  moral  root  of  the  whole  doctrine  of  punishment." 

One  final  proof  of  the  invalidity  of  the  retribu- 
tive theory  may  be  mentioned,  and  that  is  that, 
when  accepted  as  an  absolute  principle,  no  possible 
room  is  left  for  the  idea  of  forgiveness.  If  it  be 
right  that  a  sin  should  be  punished  simply  and 
solely  because  it  is  a  sin,  then  forgiveness  or 
remission  of  punishment  can  never  be  other  than 
a  violation  of  that  moral  law.  Where  the  duty 
of  punishment  is  absolute,  a  duty  of  forgiveness 
cannot  exist.  Here,  then,  unless  we  would  take 
the  extreme  position  of  saying  that  the  idea  of 
forgiveness  should  play  no  part  in  our  ethical 
system,  are  two  inconsistent  principles.  But,  ac- 
cording to  all  reason  and  philosophy,  no  principle 
can  be  considered  as  true  in  itself  which  necessarily 
leads  to  internal  contradiction.^ 

1  This  point  has  been  well  made  by  Mr.  Rashdall  in  his  article, 
"  The  Ethics  of  Forgiveness,"  in  the  International  Journal  of  Ethics, 
January,  1900. 


PUNITIVE   JUSTICE  345 

This  difficulty  vanishes,  however,  when  we  frankly 
accept  the  principle  that  pain,  when  bestowed,  should 
ever  be  for  the  purpose  of  obtaining  some  future 
good.  For  then  we  can  recognize  that  when  a 
greater  good  will  be  secured  by  forgiveness  than 
by  punishment,  it  is  right  that  the  forgiveness 
should  be  extended.  "  Upon  this  view  of  the  re- 
lation of  punishment  to  forgiveness,  there  is  no 
absolute  antagonism  between  that  sense  of  forgive- 
ness in  which  it  is  opposed  to  punishment  and  that 
sense  in  which  it  is  compatible  with  punishment. 
Just  the  same  considerations  which  impose  the  duty 
of  punishment  will  limit  the  means  of  it ;  just  those 
same  considerations  which  allow  the  total  remission 
of  penalty  in  some  cases  will  allow  of  some  mitiga- 
tion of  it  in  other  cases,  and  will  impose  in  all  cases 
the  duty  of  showing  whatever  benevolence  and  good- 
will toward  the  offender  is  compatible  with  that 
measure  of  punishment  which  social  duty  demands. 
Punishment  and  forgiveness,  when  they  are  what 
they  ought  to  be,  being  alike  the  expression  of 
love,  the  mode  and  degree  of  their  combination  will 
likewise  be  only  the  application  of  the  general  pre- 
cept of  love  to  the  circumstances  of  the  particular 
case.    ^ 

Before  leaving  the  criticism  of  the  retributive 
theory,  one  other  point  is  to  be  noticed.  This  is, 
that  the  acceptance  of  the  retributive  idea  has 
undoubtedly  been  influential  in  dictating  to  legis- 
lators and  courts  those   extraordinary  severities  of 

*  Mr.  Rashdall,  in  the  article  quoted. 


346  SOCIAL  JUSTICE 

punishments  which  have  unfortunately  so  character- 
ized the  administration  of  criminal  justice  in  the 
past.  Where  it  is  looked  upon  as  the  law's  province 
to  mete  out  punishments  equivalent  to  the  moral 
offence  committed,  almost  no  physical  suffering  can 
in  theory  be  deemed  excessive.  For  how  -meas- 
ure in  temporal  terms  the  quantity  of  a  violation, 
however  slight,  of  the  Almighty's  will  ?  It  was,  in 
fact,  by  expressly  calling  back  the  criminal  law  to 
simple  utilitarian  ends  that  such  writers  as  Beccaria, 
Montesquieu,  and  Bentham  were  able,  by  their  influ- 
ence, to  put  a  stop  to  that  vast  amount  of  needless 
suffering  which  was  the  result  from  the  administra- 
tion of  the  criminal  laws  of  a  hundred  years  ago. 

Revenge.  —  It  will  undoubtedly  be  asked  as  an 
objection  to  repudiating  absolutely  the  retributive 
idea  of  punishment,  "  Is  not  indignation  at  a  wrong 
done  a  righteous  feeling ;  and  is  it  not  right  to 
embody  this  indignation  in  concrete,  effective  form 
in  our  criminal  laws  ?  Is  it  not  right  that  we  should 
feel  a  certain  satisfaction,  and  recognize  a  certain 
fitness  in  the  suffering  of  one  who  has  done  an  inten- 
tional wrong?  Shall  the  murderer  go  unscathed, 
and  the  adulterer  be  freed  from  the  penalty  for  his 
crnne  : 

To  these  questions  we  answer  that  it  is  right, 
indeed  that  it  is  morally  obligatory  upon  us  to  feel 
indignant  at  a  wrong  done.  But  it  is  not  right  that 
we  should  wish  evil  to  the  offender  save  as  possible 
good  can  come  from  that  evil.  The  two  feelings  are 
wholly  distinct.     The  one  is  a  feeling  of  moral  revul- 


PUNITIVE   JUSTICE  347 

sion  and  is  directed  at  the  crime.  The  other  is  a 
desire  for  vengeance,  and  is  directed  at  the  criminal. 

Now  it  is  true  that  in  the  lower  stages  of  cul- 
ture vengeance  has  played  a  socially  necessary  part. 
"When  men  generally  recognized  no  rights  in  others 
which  they  were  morally  bound  to  respect,  and  no 
controlling  political  power  existed  to  compel  them 
to  do  so,  the  fear  of  provoking  retaliation  on  the  part 
of  the  injured  party  and  his  family  and  friends, 
necessarily  furnished  the  sole  restraining  power. 
"  Gratitude,"  says  Lecky,  "  has  no  doubt  done  much 
to  soften  and  sweeten  the  intercourse  of  life,  but  the 
corresponding  feeling  of  revenge  was  for  centuries 
the  one  bulwark  against  social  anarchy,  and  is  even 
now  one  of  the  chief  restraints  to  crime."  ^ 

The  correctness  of  this  last  assertion  as  applied  to 
any  particular  people,  evidently  depends  upon  the 
character  and  efficiency  of  its  criminal  law.  In  so 
far  as  crime  is  not  adequately  controlled  by  the  State, 
or  the  pursuit  of  private  vengeance  permitted,  this 
latter  element  does  of  course  exercise  a  deterrent 
effect  upon  those  who  are  restrained  from  acts  of  vio- 
lence only  by  the  fear  of  the  punishment  that  follows. 

Furthermore,  in  an  historical  sense,  our  present 
criminal  law  is  founded  upon  the  idea  of  vengeance. 
The  steps  by  which  the  transition  was  made  have  been 
recently  described  by  Jenks  in  a  most  luminous 
manner.^  "  The  earliest  notion  of  justice,  as  distinct 
from    mere    indiscriminate    revenge,    that   we    find 

^History  of  European  Morals,  Vol.  I,  Chapter  I. 
^ Law  and  Politics  in  the  Middle  Ages,  Chapter  IV. 


348  SOCIAL   JUSTICE 

among  the  Teutonic  peoples,"  says  Jenks,  "  is  un- 
doubtedly the  blood  feud.  Barbarous  as  such  an 
institution  appears  to  us,  we  have  but  to  think  for  a 
moment,  to  realize  its  immense  importance  as  a  step 
in  human  progress.  A  man  receives  a  wound  from 
another;  is  perhaps  killed.  Instantly  the  passion 
for  slaughter  awakes.  All  who  are  in  any  way 
interested  in  the  dead  man  —  those  who  worshipped 
his  gods  or  fought  by  his  side  —  are  eager  to  avenge 
his  death  on  any  person  who  may  be  supposed  to  be 
connected  with  his  murder.  General  carnage  is  the 
result ;  no  man's  life  is  safe.  But  if  it  can  once  be 
established  that  the  right  of  vengeance  belongs  only 
to  a  limited  circle  of  the  dead  man's  relatives,  and 
may  be  exercised  only  against  the  immediate  relatives 
of  the  offender,  the  area  is  substantially  narrowed,  the 
evil  of  the  deed  proportionally  decreased.  This  is 
the  work  of  the  blood  feud.  ...  To  the  blood  feud, 
.  .  .  succeeds  the  wer  or  money  payment  as  com- 
pensation for  the  injury  inflicted."  Two  points  need 
to  be  noticed  regarding  this  system.  First  that, 
originally,  it  was  a  purely  voluntary  system;  and, 
secondly,  it  was  always  admitted  that  there  were 
some  offences  for  which  the  money  payment  could 
not  atone.  "  These  are  our  two  starting  points  for 
the  history  of  state  justice.  The  King  comes  to  the 
help  of  the  clan  by  compelling  the  avenger  to  accept 
the  icer  and  by  compelling  the  offender  to  pay  it. 
He  likewise  takes  upon  himself  the  punishment  of 
bootless  crimes." 

The  punitive  power  of  the  State  once  asserted  and 


PUNITIVE   JUSTICE  349 

recognized,  its  growth  in  influence  and  authority  is 
constant,  until  the  old  idea  of  a  crime  being  but  a 
matter  involving  the  private  interests  of  two  or  more 
individuals,  if  not  absolutely  destroyed,  is  at  least 
nearly  lost  sight  of  in  the  doctrine  that  a  violation 
of  an  established  right  is  primarily  an  offence  against 
the  State,  and  to  be  punished  as  such. 

The  point  which  we  wish  to  make,  however,  is 
that  this  change  of  view,  when  properly  interpreted, 
represents  not  simply  the  idea  that  the  State  takes 
the  place  of  the  individual  for  the  purpose  of  aveng- 
ing the  original  wrong,  but  that  the  very  idea  as  to 
nature  of,  and  the  very  purpose  for  which,  the  penal- 
ties of  the  criminal  law  are  imposed,  is  changed. 
Punishment  is  inflicted  no  longer  because  of  the 
simple  desire  that  the  offender  shall  suffer  pain,  but 
in  order  that  either  he  or  society  may  derive  some 
benefit  therefrom.  Thus  that  personal  spirit  of 
malevolence,  which  is  of  the  essence  of  revenge,  is 
entirely  absent,  and  in  its  place  is  the  impartial, 
unimpassioned  voice  of  the  law.  Or,  to  use  the 
more  metaphysical  expression,  the  universal  will  is 
substituted  for  the  particular  will.  The  subjective 
element  is  destroyed. 

To  revenge  oneself  is,  in  truth,  but  to  add  another 
evil  to  that  which  has  already  been  done ;  and  the 
admission  of  it  as  a  right  is,  in  effect,  a  negation  of 
all  civil  and  social  order,  for  thereby  are  justified 
acts  of  violence  not  regulated  by,  nor  exercised  with 
reference  to,  the  social  good.  The  idea  that  in  the 
criminal  law  the  State  "  avenges "  the  wrong  done 


350  SOCIAL  JUSTICE 

to  itself  and  to  individuals  is,  in  fact,  but  a  rem- 
nant of  the  old  "  natural  rights  "  and  "  social  com- 
pact "  theories,  according  to  which  individuals 
originally  had  a  "  right "  of  self-protection  and  of 
vengeance  which,  when  the  body  politic  was  formed, 
was  handed  over  to  it  for  exercise,  and  that  thus 
the  State  obtained  a  just  authority  to  exercise  force 
and  punitive  power. 

There  are  few  who  in  modern  times  assert  the 
abstract  rightfulness  of  a  desire  for  vengeance,  but 
among  these  few  is  to  be  found  the  eminent  writer 
upon  criminal  law,  the  late  Justice  Fitzjames  Ste- 
phen.^ The  statement  of  his  position  upon  this  point 
is  in  the  following  emphatic  terms :  ''  The  inflic- 
tion of  punishment  by  law  gives  definite  expression 
and  a  solemn  ratification  to  the  hatred  which  is 
excited  by  the  commission  of  the  offence,  and  which 
constitutes  the  moral  or  popular  as  distinguished 
from  the  conscientious  sanction  of  that  part  of  mor- 
ality which  is  also  sanctioned  by  the  criminal  law. 
The  criminal  law  thus  proceeds  upon  the  principle 
that  it  is  morally  right  to  hate  criminals,  and  it 
confirms  and  justifies  that  sentiment  by  inflicting 
upon  criminals  punishments  which  express  it."  "I 
am  of  opinion,"  he  continues,  "  that  this  close  alli- 
ance between  criminal  law  and  moral  sentiment  is 
in  all  ways  healthy  and  advantageous  to  the  com- 
munity. I  think  it  highly  desirable  that  criminals 
should  be  hated,  that  the  punishments  inflicted  upon 
them  should  be  so  contrived  as  to  give  expression  to 

1  See  his  History  of  the  Criminal  Law  of  England,  Chapter  XVII. 


PUNITIVE   JUSTICE  351 

that  hatred,  and  to  justify  it  so  far  as  the  public 
provision  of  means  for  expressing  and  gratifying  a 
healthy  natural  sentiment  can  justify  and  encourage 
it. 

To  the  declaration  that  it  is  natural  and  right 
that  we  should  hate  the  criminal,  if  by  that  is  meant 
that  we  detest  his  crime  and  are  indignant  at  him 
for  committing  it,  no  objection  can  be  made.  Nor 
can  any  be  made  to  the  assertion  that  it  is  well  that 
this  hatred  should  find  expression  in  the  law,  if 
by  this  is  meant  that  a  moral  influence  is  exerted 
by  the  fact  that  thus  there  is  stamped  in  plain 
and  unmistakable  terms  the  disapproval  of  the  sov- 
ereign power  of  the  reprobated  acts.  This  we  may 
term  the  educative  service  of  penal  law.  It  is  a 
truth,  unfortunate  though  it  may  be,  that  in  every 
•community  a  very  considerable  number  of  the  peo- 
ple derive  in  large  measure  their  conceptions  of 
right  and  wrong  from  the  commands  and  prohibi- 
tions of  the  law.  Upon  all  such,  the  fact  that  the 
sovereign  authority  of  the  State  has  declared  a 
given  act  to  merit  a  more  or  less  severe  punish- 
ment, is  not  without  its  influence.  It  is  desirable, 
therefore,  aside  from  any  other  services  that  the 
criminal  law  may  perform,  that,  as  Stephen  says, 
the  criminal  law  should  be  so  drawn  as  to  express 
the  true  detestation  in  which  immoral  acts  should 
be  held.  But  Stephen,  in  the  sentences  which  fol- 
low those  already  quoted,  seems  to  go  much  further, 
and  to  defend  revenge  pure  and  simple. 

"  These  views "  (which  we  have  just  quoted),  he 


352  SOCIAL   JUSTICE 

says,  ^*  are  regarded  by  many  persons  as  being  wicked, 
because  it  is  supposed  that  we  ought  never  to  hate,  or 
wish  to  be  revenged  upon  any  one.  The  doctrine  that 
hatred  and  vengeance  are  wicked  in  themselves  appears 
to  me  to  contradict  plain  facts,  and  to  be  unsupported 
by  any  argument  deserving  of  attention.  Love  and 
hatred,  gratitude  for  benefits,  and  the  desire  for  ven- 
geance for  injuries,  imply  each  other  as  much  as  con- 
vex and  concave.  Butler  vindicated  resentment, 
which  cannot  be  distinguished  from  revenge  and 
hatred  except  by  name,  and  Bentham  included  the 
pleasures  of  malevolence  amongst  the  fifteen  which, 
as  he  said,  constitute  all  our  motives  of  action.  The 
unqualified  manner  in  which  they  have  been  denounced 
is  in  itself  a  proof  that  they  are  deeply  rooted  in 
human  nature.  No  doubt  they  are  peculiarly  liable 
to  abuse,  and  in  some  states  of  society  are  commonly 
in  excess  of  what  is  desirable,  and  so  require  restraint 
rather  than  excitement ;  but  unqualified  denunciations 
of  them  are  as  ill  judged  as  unqualified  denunciations 
of  sexual  passion.  The  forms  in  which  deliberate 
anger  and  righteous  disapprobation  are  expressed, 
and  the  execution  of  criminal  justice  as  the  most 
emphatic  of  such  forms,  stand  to  the  one  set  of  pas- 
sions in  the  same  relation  in  which  marriage  stands 
to  the  other." 

Here  it  is  quite  plain  that,  if  we  accept  the  literal 
meaning  of  the  words  used.  Justice  Stephen  defends 
as  ethically  proper,  under  certain  circumstances,  the 
desire  for  vengeance.  If,  however,  we  examine  care- 
fully the  thought,  we  think  that  it  will  be  found  that 


PUNITIVE   JUSTICE  353 

that  which  Stephen  really  has  in  mind  is,  after  all, 
that  feeling  of  indignation  which  we  may  properly 
feel  at  the  commission  of  a  wrong,  rather  than  the 
idea  of  revenge  pure  and  simple.  Thus  he  begins 
the  second  quotation  which  we  have  made  by  saying 
that  "these  views"  —  namely,  those  expressed  in  the 
first  quotation  regarding  the  propriety  of  an  indigna- 
tion against  wrong-doing  —  "  are  often  regarded  as 
wicked  because  it  is  supposed  that  we  ought  never  ^' 
to  wish  to  be  revenged  upon  any  one."  Again,  a 
little  later  on,  he  speaks  of  the  criminal  law  as  being 
one  of  the  most  emphatic  forms  in  which  "  deliberate 
anger  and  righteous  disapprobation "  are  expressed. 
Stephen  no  doubt  felt  most  strongly  the  educative 
value  of  the  criminal  law  in  bringing  home  not  only 
to  the  criminal  himself  but  to  all  others  the  evil  con- 
sequences of  immoral  acts,  but  he  errs  when  he  con- 
fuses this  with  the  idea  of  revenge.  The  desire  for 
revenge  means  nothing  more  than  the  wish  that  the 
object  of  one's  hatred  shall  be  visited  by  an  evil  sim- 
ply and  solely  because  of  the  suffering  it  will  cause 
him.  We  think  that  if  Stephen  had  eliminated  from 
his  thought  the  belief  in  the  possible  educative  value 
of  the  punishment,  he  would  have  seen  that  what 
would  be  left  would  not  be  a  sentiment  ethically 
defensible.  Thus,  to  reduce  the  matter  to  concrete 
statement,  we  do  not  believe  that  Stephen,  or  any 
one  else  who  accepts  his  views,  would  be  ready  to  say 
that  he  would  wish  that,  as  a  penalty  for  his  crime, 
a  criminal  should  be  visited  by  an  evil,  say  for  in- 
stance   a   grievous   sickness,  which   neither   he   nor 

2  a 


354  SOCIAL   JUSTICE 

others  would  or  could  recognize  as  being  a  return 
upon  him  of  the  consequence  of  his  own  evil  act. 
Hegel  has  often  but  incorrectly  been  interpreted 
as  advocating  the  retributive  theory  of  punishment. 
The  true  ground  upon  which  he  justifies  the  deliber- 
ate infliction  of  suffering  upon  a  wrong-doer  is  that 
this  suffering  at  least  tends  to  have  upon  the  crimi- 
nal himself  the  educative  effect  of  which  we  have 
been  speaking.^  Hegel  uses  the  word  retribution, 
but,  as  the  context  shows,  it  is  as  having  this  educa- 
tive sense,  and  not  that  of  revenge.  "  In  the  sphere 
of  direct  right,"  says  Hegel,  "  the  suppression  of 
crime  takes  in  the  first  instance  the  form  of  revenge. 
This  in  its  content  is  just,  so  far  as  it  is  retribution  ; 
but  in  its  form  it  is  the  act  of  a  subjective  will,  which 
may  put  into  an  injury  an  infinite  or  unpardonable 
wrong.  Hence  its  justice  is  a  matter  of  accident, 
and  for  others  means  only  private  satisfaction.  As 
revenge  is  only  the  positive  act  of  a  particular  will, 
it  is  a  new  injury.  Through  this  contradiction  it 
becomes  an  infinite  process,  the  insult  being  inherited 
without  end  from  generation  to  generation.  Wher- 
ever crime  is  punished  not  as  crimina  piihlica,  but  as 
privata,  it  still  has  attached  to  it  a  remnant  of 
revenge."  ^  "  The  injury  which  the  criminal  experi- 
ences is  inherently  just  because  it  expresses  his  own 
inherent  will;  it  is  a  visible  proof  of  his  freedom  and 
is  his  right.     But  more  than  that,  the   injury  is  a 

1  Cf .  an  article  by  McTaggert  entitled,  "  Hegel's  Theory  of  Punish- 
ment," in  the  International  Journal  of  Ethics,  Vol.  VI,  p.  479. 

2  The  Philosophy  of  Right,  translated  by  Dyde,  §  102. 


PUNITIVE  JUSTICE  355 

right  of  the  criminal  himself,  and  is  implied  in  his 
realized  will  or  act.  In  his  act,  the  act  of  a  rational 
being,  is  involved  a  universal  element  which  by  the 
act  is  set  up  as  the  law.  This  law  he  has  recognized 
in  his  act,  and  has  consented  to  be  placed  under  it  as 
under  his  right."  ^  The  matter  is,  however,  put  in  a 
nutshell  when  Hegel  says  that  in  his  idea  of  retribu- 
tion there  is  implied  no  pleasure  for  the  objective 
will,  such  as  is  involved  in  the  idea  of  revenge,  but 
simply  the  "  turning  back  of  crime  against  itself. 
The  Eumenides  sleep,  but  crime  wakes  them.  So  it 
is  the  criminal's  own  deed  which  judges  itself."^ 

Hegel  does  not  deny  that  the  criminal  law  may  be 
made  to  serve  other  purposes  than  that  of  awakening 
the  criminal  to  a  true  comprehension  of  the  nature  of 
his  deed,  but  this  last  should  ever,  he  thinks,  furnish 
the  fundamental  motive.  "The  treatment  of  punish- 
ment in  its  character  as  a  phenomenon,"  he  says,  "  of 
its  relation  to  the  particular  consciousness,  of  the 
effect  of  threats  upon  the  imagination,  and  of  the 
possibility  of  reform  is  of  great  importance  in  its 
proper  place,  when  the  method  of  punishment  is  to 
be  decided  on.  But  such  treatment  must  assume 
that  punishment  is  absolutely  just.  Hence  every- 
thing turns  on  the  point  that  in  crime  it  is  not  the 
production  of  evil  but  the  injury  of  right,  which 
must  be  set  aside  as  overcome.  We  must  ask  what 
that  is  in  crime,  whose  existence  has  to  be  removed. 
That  is  the  only  evil  to  be  set  aside,  and  the  essen- 
tial thing  to  determine  is  wherein  that  evil  lies.     So 

i/rfem,  §100.  ^  Idem,  ^101. 


356  SOCIAL   JUSTICE 

long  as  conceptions  are  not  clear  on  this  point,  con- 
fusion must  reign  in  the  theory  of  punishment."  ^ 

It  is  scarcely  necessary  to  point  out  that  in  aban- 
doning the  theory  of  revenge,  Hegel  definitely  places 
himself  upon  the  ground  that  the  purpose  of  punish- 
ment should  be  utilitarian  ;  that  is,  that  its  imposition 
should  be  for  the  attainment  of  some  present  or 
future  good.  His  theory,  in  fact,  very  much  resem- 
bles what  is  generally  known  as  the  Reformatory 
Tlieory.  It  differs  from  that  theory,  however,  in  one 
important  respect.  While  those  who  accept  the  reform- 
atory theory  desire  that  one  of  the  aims  of  our  peni- 
tential systems  should  be  to  awaken  the  conscience  and 
change  the  disposition  of  the  criminal,  the  aim  which 
Hegel  has  in  mind  is  rather  to  arouse  the  comprehen- 
sion of  the  wrong-doer  to  the  true  nature  of  his  act. 
The  object  is  thus  to  stimulate  his  cognitive  faculties, 
rather  than  to  increase  his  sense  of  moral  obligation ; 
to  show  what  is  right  and  what  is  wrong,  rather  than 
to  teach  him  that  he  should  do  what  is  right  and 
avoid  doing  what  is  wrong.  For  this  reason  we 
have  preferred  to  call  Hegel's  theory  Educative 
rather  than  Reformatory. 

Hegel  has  in  mind  solely  the  possible  educative 
value  of  punishment  upon  the  criminal  himself. 
Logically,  however,  the  theory  includes  the  educa- 
tive influence  that  it  may  have  upon  the  community 
at  large.  In  actual  effect,  indeed,  this  may  easily  be 
much  the  more  important  part  of  the  educational 
influence  exercised  by  it. 

1  Idem,  §  99. 


PUNITIVE   JUSTICE  357 

How  far  it  is  possible  either  to  educate  or  reform 
the  criminal  by  punishment,  is  a  matter  upon  which 
persons  will  naturally  differ.  Personally  we  are 
inclined  to  believe  that  it  can  reform  him  only  as  it 
educates  him.  With  the  true  nature  of  his  act  clearly 
brought  home  to  him,  the  conscience  of  the  criminal, 
so  far  as  it  is  not  already  blunted,  will  then  exercise 
its  controlling  power  to  prevent  a  repetition  of  the 
same  or  similar  conduct.  But  directly  to  awaken 
the  conscience  by  a  series  of  pains,  if  not  impossible, 
is  certainly  difficult.  As  Hudibras  has  said,  "  No 
thief  e'er  felt  the  halter  draw  with  just  opinion  of 
the  law " ;  and  as  George  Eliot  in  her  Felix  Holt 
declares,  "  Men  do  not  become  penitent  and  learn  to 
abhor  themselves  by  having  their  backs  cut  open 
with  the  lash ;  rather  they  learn  to  abhor  the  lash." 

Perhaps,  however,  it  will  be  said  this  does  injus- 
tice to  the  reformatory  theory.  It  may  be  said  that 
those  who  emphasize  the  reformatory  element  in  the 
administration  of  penal  justice  maintain,  not  that 
the  punishment  which  is  inflicted  has,  or  can  be 
made  to  have,  a  reforming  influence,  but  that  the 
State  should  seek  to  reform  the  criminals  while  pun- 
ishing them.^  But  if  this  be  so,  then  the  theory  is 
not  one  of  punishment  at  all.     For  the  reformation, 

^  See  on  this  point  the  excellent  paper  of  Mr.  McTaggert,  in  the 
International  Journal  of  Ethics,  already  quoted,  and  that  of  ]\Ir.  Rash- 
dall  in  the  same  Journal  (TI,  20)  entitled  "  The  Theory  of  Punishment." 
"  When  a  man  is  induced  to  abstain  from  crime,"  says  Rashdall,  "  by 
the  possibility  of  a  better  life  being  brought  home  to  him  through  the 
ministrations  of  a  prison  chaplain,  through  education,  through  a  book 
from  the  prison  library,  or  the  efforts  of  a  Discharged  Prisoners'  Aid 
Society,  he  is  not  reformed  by  punishment  at  all." 


358  SOCIAL  JUSTICE 

if  it  comes  at  all,  is  then  the  result  from  the  disci- 
pline that  the  prisoner  receives,  not  from  the  incarcera- 
tion which  is  imposed  as  punishment.  Furthermore, 
the  deterrent  element  in  punishment  is  not  to  be  con- 
fused with  the  idea  of  reformation.  An  experience 
of  the  painful  consequences  of  crime  may  deter  a 
criminal  from  again  violating  the  law,  not  because  it 
shows  him  the  immorality  of  his  conduct,  but  because 
it  demonstrates  its  inexpediency. 

Utilitarian  Theories  of  Punishment.  — To  a  very  con- 
siderable extent  we  have  already  presented  the  grounds 
upon  which  the  other  than  retributive  theories  of 
punishment  are  based.  The  retributive  theory  stands 
sui  generis  in  that  it  alone  looks  wholly  to  the  past 
and  rejects  as  unessential  to,  if  not  inconsistent  with, 
itself  all  utilitarian  considerations.  In  rejecting  the 
retributive  theory,  therefore,  we  necessarily  accept 
the  utilitarian  theory  that  punishment,  to  be  justly 
imposed,  must  have  for  its  aim  the  realization  of 
some  future  good.  These  utiUtarian  theories  differ 
from  each  other  according  to  the  nature  of  the  good 
sought.  Thus  we  have :  (1)  The  Deterrent  Theory, 
according  to  which  punishments  are  inflicted  in  order 
that  other  would-be  law-breakers  may  be  dissuaded 
from  crime ;  (2)  The  Preventive  Theory,  the  aim  of 
which,  as  its  name  implies,  is  to  prevent  the  repeti- 
tion of  the  offence  by  the  surveillance,  imprisonment, 
or  execution  of  the  criminal;  (3)  The  Reformatory 
Theory,  the  object  of  which  is  the  moral  reformation 
of  the  delinquent ;  and  (4)  The  Educative  Theory, 
of  which  we  have  already  spoken. 


PUNITIVE  JUSTICE  359 

A  point  to  be  noticed  about  these  theories  is  that 
they  are  not  mutually  exclusive.  There  is  no  reason 
why,  the  utilitarian  idea  being  once  accepted,  we 
should  not  strive  to  reach  in  our  penitential  systems 
beneficial  results  in  all  four  of  the  directions  men- 
tioned. It  is  therefore  possible  to  speak  of  a  given 
law  being  founded  on  one  or  the  other  of  these 
ideas  only  in  so  far  as  deterrence,  prevention,  edu- 
cation, or  reformation,  as  the  case  may  be,  is  placed 
in  the  foreground  as  the  chief  end  to  be  realized. 

But  we  may  go  further  than  simply  to  declare 
that  these  theories  are  not  mutually  exclusive.  We 
may  assert  that  it  is  rationally  impossible  to  select 
any  one  aim  and  to  declare  that  in  any  system  of 
penal  justice  that  one  should  furnish  the  sole  motive 
for  its  enactment  and  enforcement.  It  may  be 
possible  to  pass  particular  laws  the  aim  of  which 
is  solely  in  one  or  the  other  of  these  directions ; 
but  to  attempt  the  establishment  of  an  entire  crimi- 
nal code  with  but  a  single  aim  would  inevitably  lead 
to  absurdities  and  injustices.  If  absolute  prevention 
were  the  sole  aim,  capital  punishment  or  lifelong 
imprisonment  would  be  the  normal  punishment 
called  for ;  for  in  no  other  way  could  there  be  fur- 
nished a  guarantee  against  a  repetition  of  the  offence 
by  the  convicted  one.  If  reformation  were  the  sole 
aim  sought,  then,  not  to  mention  other  absurdities, 
it  would  be  necessary  for  a  court  to  release  from  all 
punishment  those  hardened  and  habitual  criminals 
regarding  whom  experience  had  demonstrated  penal 
law   to    be    without    a    reformatory   influence.      If 


360  SOCIAL   JUSTICE 

deterrence  were  accepted  as  the  absolute  canon,  we 
would  be  obliged  to  abandon  all  attempts  at  refor- 
mation, and  by  the  strictness  and  severity  of  our 
punishments  give  ourselves  up  to  an  appeal  simply 
to  the  fears  of  mankind.  Finally,  if  the  educative 
theory  were  to  be  solely  relied  upon,  we  would  not 
be  able  to  modify  the  character  and  severity  of  our 
punishments  so  as  best  to  meet  threatened  invasions 
of  social  or  political  order.  This  would  mean  that 
in  times  of  greatest  need  the  State  would  find  itself 
powerless.  Thus,  for  example,  should  a  grievous 
pestilence  be  threatened,  necessity  would  demand 
that  violations  of  quarantine  and  other  health  ordi- 
nances should  be  prevented  at  all  hazards,  and  hence 
that  extraordinarily  severe  penalties  should  be  at- 
tached to  their  violation.  Or,  again,  in  a  time  of 
great  political  unrest  and  disorder,  when  the  very 
life  of  the  State  is  threatened,  martial  law  would 
be  demanded.  But  if  we  accept  any  but  the  deter- 
rent theory  as  absolutely  sufficient  in  itself,  such 
measures  would  be  unjustifiable. 

As  we  have  seen,  the  retributive  theory  rests 
under  the  embarrassment  of  predicating  as  a  ground 
for  the  right  to  punish  a  motive  which  logically 
necessitates  that  the  character  and  degree  of  the 
punishments  which  are  inflicted  should  correspond 
with  the  degree  of  moral  guilt  of  the  offenders, 
whereas  the  determination  of  this  degree  of  guilt 
is  inherently  beyond  the  power  of  any  criminal  court. 
From  this  difficulty  the  utilitarian  theory  is  free. 
We  have  spoken  of  the  ideas  of  deterrence,  reforma- 


PUNITIVE  JUSTICE  361 

tion,  education,  and  prevention  as  distinct  from  one 
another,  and  so  they  are.  Yet  when  viewed  in  their 
proper  light,  they  are  all  but  different  phases  of  one 
supreme  idea,  the  social  welfare.  The  aim  of  the 
criminal  law,  like  that  of  the  civil  law,  and  indeed 
of  all  laws  and  principles  of  conduct,  is  the  general 
weal.  Therefore,  in  passing  upon  the  propriety  of 
emphasizing  in  a  given  piece  of  legislation  any  one 
of  these  ideas,  whether  of  reformation,  education, 
prevention,  or  deterrence,  it  is  ever  necessary  to  con- 
sider the  matter  in  its  social  and  not  in  its  individual 
light.  There  may  thus  be  cases  in  which,  as  to  the 
particular  criminal  or  criminals  concerned,  a  remis- 
sion of  punishment  would  exercise  a  more  beneficial 
influence  than  its  imposition,  but  in  which  social 
considerations  demand  a  satisfaction  of  the  law's  full 
severity. 

The  bearing  of  this  upon  the  question  of  justly 
apportioning  penalties  is  that  it  makes  it  no  longer 
necessary  to  attempt  the  impossible  task  of  making 
the  punishment  correspond  to  the  degree  of  the  crimi- 
nal's guilt,  but  leaves  it  open  to  the  laws  and  to  the 
courts  to  arrange  their  judgments  according  to  the 
practical  exigencies  of  each  case  as  determined  by 
the  social  need. 

Vidal,  in  his  Principes  fondamentaux  de  la  penalite, 
denies  the  validity  of  the  social-defence  theory,  on 
the  ground  that  it  justifies  the  treatment  of  the 
individual  criminal  as  a  mere  means  to  social  wel- 
fare; that  it  improperly  divorces  the  ideas  of  pun- 
ishment and  desert,  and  reduces  the  whole  question 


362  SOCIAL  JUSTICE 

to  one  of  simple  convenience.  As  an  example  of  all 
that  is  bad,  he  quotes  the  following  declaration  of  Le 
Bon  :  ^  "  The  questions  of  responsibility  and  free  will 
plainly  have  nothing  to  do  with  what  we  have  been 
saying.  .  .  .  When  a  viper  or  an  enraged  dog 
wounds  me,  I  do  not  stop  to  ask  whether  the  ani- 
mal be  responsible  for  his  act.  I  seek  to  protect 
myself,  and  to  prevent  it  from  injuring  me  and 
others.  Nearly  all  criminals  are  irresponsible,  in 
the  sense  that  by  their  own  nature  or  by  circum- 
stances they  cannot  help  being  malefactors.  But  in 
what  respect  do  these  formidable  beings  merit  a 
greater  regard  than  the  millions  of  innocents  whom 
we  see  miserably  dying  upon  battle-fields  in  order  to 
defend  causes,  of  even  the  nature  of  which  they  are 
ignorant  ? " 

The  objections  of  M.  Vidal  to  the  social-defence  or 
social-welfare  theory  disappear  when  we  point  out 
that,  as  has  been  before  said,  a  criminal  is  not  treated 
merely  as  a  means  when  his  good  is  given  equal  con- 
sideration with  the  good  of  others  in  determining  the 
general  welfare,  and  when  we  call  attention  to  the 
fact  that  the  term  "  social  w^elfare "  is  not  to  be 
understood  as  connoting  mere  material  welfare,  but 
the  highest  ethical  good  possibly  attainable.  One 
often  sees  the  social-defence  theory  justified  by  com- 
paring it  with  that  instinctive  right  of  self-defence 
which  every  living  organism  exercises.  While  as 
a  simple  analogy  this    is  not   inapt,  it   is  yet  mis- 

^  From  his  article,  "  La  Question  des  Criininels,"  in  the  Revue 
Philosophique  for  1881. 


PUNITIVE  JUSTICE  363 

leading  in  that  it  apparently  reduces  the  right  to 
one  of  simple  defence  against  loss  or  physical  injury, 
whereas  it  should  be  justified  upon  higher  ethical 
grounds. 

Law  and  Morality.  —  Tq  what  extent,  it  may  be 
asked,  does  either  the  theory  or  practice  of  our 
criminal  law  conform  to  the  principle  which  we 
have  established  that  tlie  idea  of  retribution  or 
expiation  should  be  repudiated  ?  Very  little,  one  is, 
at  first  thought,  inclined  to  answer.  Indeed,  if 
we  were  to  ask  the  ordinary  individual  to  define 
the  relation  between  law  and  morality,  the  answer 
we  should  almost  certainly  get  would  be  that  legal 
rights  and  duties  are  such  moral  rights  and  duties 
as  are  recognized  and  enforced  by  the  State ;  that  the 
law,  so  far  as  it  extends,  occupies  the  same  sphere 
as  morality,  and  exists  in  the  main  for  the  same 
purpose. 

As  a  matter  of  fact  such  a  description  is  not 
correct.  Legal  rights  and  duties  and  moral  rights 
and  duties  are  never  distinguishable  simply  by  the 
fact  that  for  the  one  the  sanction  of  the  State  is 
supplied,  and  for  the  other  not.  It  is  true  that  very 
many  legal  rights  and  duties  are  also  moral  rights 
and  duties,  but  they  are  recognized  by  the  law  not, 
primarily,  because  they  are  such,  but  for  another 
reason,  namely,  because  their  enforcement  is  deemed 
advantageous  to  the  State.  That  is  to  say,  we 
maintain  that  an  act  is  prohibited  by  the  law,  not 
because  it  is  considered  sinful,  as  tested  by  some 
moral  standard,  but  because  the  safety  or  welfare  of 


364  SOCIAL  JUSTICE 

society  demands  it.  Thus  we  find  Sir  Frederick 
Pollock  declaring  that  — "  though  much  ground  is 
common  to  both,  the  subject-matter  of  Law  and  of 
Ethics  is  not  the  same.  The  field  of  legal  rules  of 
conduct  does  not  coincide  with  that  of  moral  rules, 
and  is  not  included  in  it ;  and  the  purposes  for  ivhich 
they  exist  are  distinct.  Law  does  not  aim  at  pro- 
tecting the  individual  character  of  men,  but  at  regu- 
lating the  relations  of  citizens  to  the  commonwealth 
and  to  one  another.  And,  inasmuch  as  human 
beings  can  communicate  with  one  another  only  by 
words  and  acts,  the  office  of  law  does  not  extend  to 
that  which  lies  in  the  thought  and  conscience  of  the 
individual."  ^  The  true  reason  why  the  criminal 
law  does  not  attempt  the  punishment  of  moral  guilt 
is,  therefore,  not  because  it  does  not  have  the  means 
at  its  disposal  for  discovering  and  correctly  measur- 
ing it,  but  because  that  is  not  the  purpose  for  which 
it  exists.  In  short,  the  criminal  law  would  not 
punish  sin,  qua  sin,  if  it  could. 

It  may  be  replied,  however,  that  such  ideas  as 
malice,  motive,  and  extenuating  circumstances  are 
found  playing  prominent  parts  in  the  definition  of 
crimes,  and  in  the  administration  of  criminal  justice. 
In  a  certain  sense  they  do  ;  but  not  in  such  a  sense 
as  to  invalidate  the  position  that  we  have  assumed. 
Let  us  see  how  this  is. 

First  of  all  we  must  distinguish  between  the  ideas 
of  intent  and  motive.  Intent  has  reference  to  the 
will  of  the  agent,  and  when  present  indicates  that 

1  First  Book  of  Jurisprudence,  p.  44. 


PUNITIVE   JUSTICE  365 

the  agent  desires  the  result  which  is  the  consequence 
of  his  act.  Amos  defines  it  as  that  "  foresight  or  .  .  . 
attitude  of  mind,  of  a  person  about  to  act,  towards 
the  immediate  consequences  of  his  act."  ^  Motive, 
on  the  other  hand,  has  reference  to  the  ground  or 
reason  upon  which  mtent  is  founded.  Thus,  when 
one  man  shoots  another,  the  intention  is  exhibited 
by  the  fact  that  the  slayer,  knowing  the  nature  and 
necessary  consequences  of  his  act,  freely  wills  to 
pull  the  trigger,  because  he  desires  the  death  of  his 
victim.  The  motive,  however,  for  the  act  lies  in 
the  anger,  jealousy,  cupidity,  or  fear  which  has 
aroused  the   desire. 

It  does  not  need  be  said  that,  while  the  intent 
must  be  present  in  order  to  create  moral  respon- 
sibility, it  is  the  character  of  the  motive  which 
in  ethics  constitutes  the  main  factor  in  estimating 
the  degree  of  guilt.  In  law,  on  the  other  hand,  the 
motive  is  almost  never  considered,  and  even  the 
intent  may  or  may  not  be  actually  present ;  for 
though  in  general  the  law  punishes  only  intentional 
acts,  yet,  under  certain  circumstances,  it  will  presume 
an  intent,  and  not  allow  this  presumption  to  be 
rebutted  by  the  defendant.  Thus  if  a  man  of  sane 
mind  fire  a  loaded  pistol  upon  a  crowded  street,  he  may 
be  held  criminally  responsible  for  the  consequences 
of  his  deed  even  though  he  intended  no  harm.  He 
will  not  be  allowed  even  to  produce  evidence  that 
he  was  without  evil  intent,  except  in  answer  to  the 
charge   of   murder.      This   doctrine   of    the   law   is 

^Science  of  Law,  p.  103. 


366  SOCIAL   JUSTICE 

founded  upon  the  conception  of  an  average  man, 
and  every  individual  is  called  upon,  at  his  peril,  to 
show  that  discretion  in  his  conduct  which  becomes 
such  an  average  individual.  This  is  clearly  a  repudi- 
ation of  the  idea  that  punishment  should  be  appor- 
tioned according  to  actual  moral  guilt.  For,  as  a 
matter  of  fact,  the  individual  may  be  in  intelligence 
below  the  standard  of  the  average  man,  but,  unless 
this  deficiency  is  so  marked  as  to  fall  within  the 
exceptions  based  on  infancy  or  madness,  it  is  disre- 
garded by  the  law.  Criminal  liability,  says  Holmes, 
*'is  found  in  the  conception  of  the  average  man,  the 
man  of  ordinary  intelligence  and  reasonable  pru- 
dence. Liability  is  said  to  arise  out  of  such  conduct 
as  would  be  blameworthy  in  him.  But  he  is  an 
ideal  being,  represented  by  the  jury  when  they  are 
appealed  to,  and  his  conduct  is  an  external  or  objec- 
tive standard  when  applied  to  any  given  individual. 
That  individual  may  be  morally  without  stain, 
because  he  has  less  than  ordinary  intelligence  or 
prudence.  But  he  is  required  to  have  those  qualities 
,  at  his  peril.  If  he  has  them,  he  will  not,  as  a 
general  rule,  incur  liability  without  blameworthi- 
ness. 

Again,  take  that  well-known  maxim  that  "  igno- 
rance of  the  law  excuses  no  one."  What  possible 
ground  can  there  be  for  the  rigid  enforcement  of 
such  a  principle  except  simple  expediency?  No 
legislator  or  judge  would  deny  that  instances  are 
constantly  occurring   in   which    persons    offend   the 

1  O.  W.  Holmes,  Jr.,  The  Common  Law,  p.  51. 


PUNITIVE   JUSTICE  367 

law  by  reason  of  an  ignorance  due  to  no  real  fault 
on  their  part.  Yet  because  many  guilty  would  escape, 
were  it  allowable  for  ignorance  to  be  set  up  as  a  de- 
fence, social  safety  demands  that  the  rule  be  made 
absolute. 

The  attitude  of  the  law  towards  motive  and  intent 
is  made  more  manifest  by  the  manner  in  which  the 
idea  of  "  malice "  is  defined  by  it.  In  ordinary  use 
the  word  "malice"  indicates  that  there  is  in  the 
mind  of  him  by  whom  it  is  held  an  evil  motive  or 
desire.  In  the  law  this  is  not  the  case.  In  its 
eyes  it  has  simply  the  ethically  neutral  meaning  of 
an  intent  to  violate  a  law,  whether  with  good  mo- 
tive or  bad.  Thus  in  Bouvier's  Law  Dictionary,  the 
word  is  defined  as,  "  the  doing  a  wrongful  act  inten- 
tionally without  just  cause  or  excuse."  And  it  is 
added :  "  Malice  is  never  understood  to  denote  gen- 
eral malevolence  or  unkindness  of  heart,  or  enmity 
toward  a  particular  individual,  but  it  signifies  rather 
the  intent  from  which  flows  any  unlawful  and  in- 
jurious act  committed  without  legal  justification." 
In  short,  then,  malice,  in  the  legal  sense,  connotes  a 
particular  kind  of  intent ;  namely,  the  intent  to 
violate  a  law ;  or,  to  put  it  another  way,  to  commit 
an  injury  without  sufficient  legal  justification.^  Thus 
the  offence  of  "  malicious  prosecution  "  means  simply 
the  institution  of  criminal  legal  proceedings  against 

1  Here,  as  said  above,  the  intent  may  be  not  a  real  but  only  a  pre- 
sumed one.  Thus,  in  slander,  the  real  question  is  not  as  to  whether 
the  defendant  intended  to  injure  the  plaintiff  by  the  words  spoken, 
but  whether,  as  a  matter  of  fact,  the  words  uttered  were  of  such  a 
character  as  to  be  calculated  to  injure. 


368  SOCIAL  JUSTICE 

another  without  sufficient  legal  justification.  So 
also,  when  we  speak  of  malice  prepense,  as  required 
to  be  proved  in  order  to  convict  one  of  murder,  the 
meaning  is  nothing  more  than  that  it  must  be  shown 
that  the  defendant  actually  and  deliberately  intended 
to  slay  his  victim. 

Sometimes,  however,  it  is  true  that  courts  of  law 
actually  attempt  the  determination  of  the  presence 
or  absence  of  a  motive  as  distinguished  from  mere 
intent.  This  occurs  when  there  is  doubt  as  to 
whether  a  given  act  has  been  committed  by  the 
individual  charged  with  it.  In  such  cases  the  pres- 
ence or  absence  in  the  individual  on  trial  of  an 
adequate  motive  for  committing  the  crime  in  ques- 
tion has  a  value  as  circumstantial  evidence.  Here 
it  is  to  be  observed,  however,  that  the  motive  is  not 
used  as  a  means  for  determining  degree  of  guilt, 
but  simply  as  a  species  of  proof  to  increase  that 
presumption  of  guilt  which  other  circumstances  have 
aroused.  It  is  employed  as  a  single  link  in  a  chain 
of  circumstantial  evidence.^ 

Another  though  less  important  fact  than  the  one 
we  have  just  been  considering,  is  that  in  ethics  if  an 
evil  act  be  attempted,  but  thwarted  by  some  outside 
circumstance,  the  guilt  in  the  individual  is  none  the 

1  Holmes  says  :  "  In  some  cases,  actual  malice  or  intent,  in  the  com- 
mon meaning  of  those  words,  is  an  element  in  crime.  But  it  will  be 
found  that,  when  it  is  so,  it  is  because  the  act  when  done  maliciously 
is  followed  by  harm  which  would  not  have  followed  the  act  alone,  or 
because  the  intent  raises  a  strong  presumption  that  an  act,  innocent 
in  itself,  will  be  followed  by  other  acts  or  events  in  connection  with 
which  it  will  accomplish  the  result  sought  to  be  prevented  by  the 
law."     The  Common  Law,  p.  76. 


PUisriTiVE  JUSTICE  369 

less.  In  law,  however,  mere  intent  to  commit,  with- 
out an  actual  beginning  of  the  act,  is  never  punished. 
Thus,  if  a  burglar  go  to  rob  a  house,  and  be  frightened 
off  by  a  policeman,  no  legal  offence  has  been  com- 
mitted ;  whereas  in  ethics,  the  sin  is  manifest.  The 
crime  of  criminal  conspiracy  appears  at  first  to  be  an 
exception  to  this  principle,  for  here  the  parties  con- 
spiring either  to  reach  a  lawful  end  by  unlawful 
means,  or  to  attain  an  unlawful  end  by  lawful 
means,  are  held  criminally  responsible,  even  though 
no  overt  act  in  pursuance  of  this  purpose  be  com- 
mitted. The  mere  fact  that  they  have  so  conspired 
is  held  sufficient.  In  truth,  however,  this  is  no 
exception  to  the  principle  we  have  stated,  for  by  its 
very  definition,  criminal  conspiracy  consists  in  the 
conspiring  and  not  in  any  unlawful  acts  which  may 
be  the  outcome  of  the  conspiracy.  And  thus,  when 
unlawful  acts  are  committed  by  conspirators,  such 
conspirators  may  be  held  criminally  liable  for  two 
distinct  crimes :  the  conspiracy,  and  the  unlawful  act 
or  acts  committed  in  pursuance  thereof. 

But  while  the  law  does  not  punish  mere  intent,  it 
does  punish  attempt.  Thus,  where  an  overt  act  is 
committed  which  is  plainly  but  preliminary  to  the 
commission  of  a  crime,  as,  for  instance,  where  a  man 
strikes  a  match  to  fire  a  house  but  blows  it  out 
when  he  perceives  himself  detected,  he  is  criminally 
liable. 

Also,  though  the  intent  itself  is  not  punished,  it 
is  yet  taken  into  consideration  in  determining  the 
criminal   nature  of   an  overt  act.      Thus  a  simple 

2b 


370  SOCIAL   JUSTICE 

assault  to  injure,  an  assault  to  kill,  and  an  assault 
with  intent  to  rape  are  different  crimes  and  differ- 
ently punished.  Thus,  also,  an  accidental  homicide 
becomes  murder  when  it  results  from  an  act  other- 
wise illegal ;  as,  for  instance,  where  a  man  is  resist- 
ing an  officer  of  the  law,  or  is  firing  at  a  neighbor's 
fowls  and  accidentally  kills  an  unseen  man. 

What  most  clearly  appears  to  be  contradictory 
to  the  position  we  have  taken  as  to  our  relation 
between  law  and  morality  is  the  fact  that  mitigating 
or  extenuating  circumstances  are  often  brought  for- 
ward in  criminal  trials  to  secure  a  lessening  of  pun- 
ishment in  those  cases  where  there  is  a  discretion 
allowed  by  the  law,  either  to  the  judge  or  to  the  jury, 
as  to  the  severity  of  the  penalty  to  be  imposed. 
Here,  at  first  thought,  it  does  seem  that  the  idea  is 
present  that  the  conditions  that  modify  moral  guilt 
should  have  an  influence  in  determining  the  measure 
of  punishment  imposed.  In  a  certain  sense,  this  is 
true.  At  the  same  time  we  think  when  the  matter 
is  carefully  examined  it  will  be  found  that  purely 
utilitarian  considerations  will  be  found  sufficient  to 
support  this  discretion  in  almost  if  not  in  every  case 
in  which  it  is  allowed.  Thus,  for  instance,  it  may 
be  recognized  that  justice  will  be  more  reformative 
when  tempered  in  certain  cases  by  mercy,  or  that  its 
educative  influence  upon  the  moral  thought  of  the 
people  will  be  greater  when  the  courts  of  law  are 
seen  to  give  weight  to  those  same  considerations 
which  enter  into  the  estimation  of  moral  desert. 
Therefore,  in  order  to  secure  these  beneficial  results, 


PUNITIVE  JUSTICE  371 

those  who  allow  the  discretion,  and  the  judges  who 
exercise  it,  may  be  willing  to  suffer  what  little  the 
law  may  lose  in  its  deterrent  effect.  That  such  util- 
itarian considerations  are  at  the  basis  of  that  discre- 
tion given  to  judges  and  juries  in  fixing  amounts  of 
punishment,  is  made  evident  by  the  fact  that  where 
deterrence  is  especially  needed,  the  law  does  not  hesi- 
tate to  disregard  extenuating  circumstances.  Thus, 
under  ordinary  conditions  a  judge  or  jury  is  inclined 
to  look  leniently  upon  the  man  who,  after  vainly 
seeking  work  or  alms,  steals  bread  for  his  starving 
children ;  but  let  a  famine  arise,  so  that  there  are 
thousands  in  want,  and  the  law  will  quickly  recog- 
nize the  need  for  severity  and,  so  far  from  admitting 
absolute  want,  however  undeserved,  as  an  excuse  for 
theft,  will  even  increase  the  penalties  ordinarily 
inflicted.^ 

The  most  apparent  exception  to  the  doctrine  that 
goodness  of  motive  will  not  render  innocent  an 
otherwise  criminal  act,  is  the  fact  that  homicide  when 
committed  in  self-defence,  or  defence  of  the  life  of 
another,  is  justified  by  the  law.  When,  however,  this 
matter  is  closely  examined,  it  is  found  that  there  are 
reasons  other  than  those  of  moral  responsibility  which 
are  fully  adequate  to  explain  the  attitude  of  the  State 
in  this  respect.  In  the  first  place,  if  we  remember 
that  the  chief  purpose  of  the  criminal  law  is  to  deter 
from  crime,  it  will  be  seen  at  once  that  if  it  is  known 
that  the  law  permits  self-defence,  even  to  the  point 

*  Cf.  Green,  Political  Obligation,  §§  194,  5,  6,  and  Bosanquet,  Philo- 
sophical Theory  of  the  State,  p.  231. 


372  SOCIAL   JUSTICE 

of  killing,  this  of  itself  furnishes  in  many  cases  an 
efficient  deterrence.  On  the  other  hand,  a  threat  of 
punishment  can  have  no  real  deterrent  effect  upon 
an  individual  threatened  with  serious  assault,  for  no 
future  penalty  can  have  at  the  time  so  great  an 
influence  as  the  danger  which  is  immediately  threat- 
ened. Furthermore,  it  is  to  be  remembered,  that  he 
who  is  making  the  assault  is  himself  attempting  to 
commit  a  crime.  Therefore,  in  exercising  the  right 
of  self-defence,  one  is  in  reality  endeavoring  to  pre- 
vent an  illegal  act.  That  this  is  the  essential  motive 
of  the  right  is  shown  by  the  fact  that  resistance  to 
an  assault  can  never  rightfully  go  beyond  this.  As 
Blackstone  says,  when  speaking  of  self-defence  :  "  It 
is  held  an  excuse  for  breaches  of  the  peace,  nay  even 
for  homicide  itself ;  but  care  must  be  taken  that  the 
resistance  does  not  exceed  the  bounds  of  mere  defence 
and  protection;  for  then  the  defender  would  him- 
self become  an  aggressor."  ^  It  thus  appears  that, 
after  all,  the  right  of  self-defence  against  assault  is 
no  broader  than  the  right  of  any  bystander,  though 
not  himself  threatened,  to  prevent  with  force,  or 
even  killing  if  necessary,  the  execution  of  a  criminal 
act.  In  such  cases  the  one  attacked,  or  the  bystander, 
is  allowed  himself  to  assume  the  office  of  a  guardian 
of  the  peace,  because  only  by  so  doing  can  effective 
restraint  be  applied. 

Upon  purely  utilitarian  grounds,  therefore,  the  law 
is  justified  in  excusing  injuries  done  in  legitimate 
self-defence. 

1  Commentaries,  Book  III,  Chapter  I. 


PUNITIVE   JUSTICE  373 

Sufficient  has  been  said  to  show  that  in  the  admin- 
istration of  criminal  law  the  idea  of  crime  is  kept 
wholly  distinct  from  that  of  sin ;  the  idea  of  legal 
wrong-doing  from  that  of  wickedness.  When,  how- 
ever, we  turn  from  the  administration  of  the  law  to 
its  enactment,  the  conditions  are  changed.  In  deter- 
mining what  acts  shall  be  declared  r}%ala  prohibita, 
legislators  are  necessarily  controlled,  not  only  by 
considerations  of  social  safety  and  expediency,  but 
by  motives  of  morality.  That  is  to  say,  laws  are 
enacted  to  prevent  not  simply  such  acts  as  are 
counter  to  public  safety  and  material  welfare,  but 
such  as  are  wicked  when  judged  by  the  moral  canons 
of  the  legislators.  There  are,  to  be  sure,  a  school  of 
thinkers  who,  accepting  the  doctrines  put  forward  by 
J.  S.  Mill  in  his  Essay  on  Liberty,  maintain  that  the 
power  of  the  State  should  never  be  extended  so  as  to 
cover  acts  not  matters  of  social  expediency.  The 
invalidity  of  the  reasoning  upon  which  such  an 
absolute  principle  is  founded  we  have,  however, 
elsewhere  shown. 

This  attempt  on  the  part  of  the  criminal  code 
to  advance  morality  by  the  punishments  which  it 
threatens  is,  however,  by  no  means  an  acceptance 
of  the  idea  that  punishment  should  be  inflicted  in 
a  retributive  sense.  Certain  acts  are  prohibited 
solely  because  they  are  deemed  wicked,  or  immoral, 
and  punishment  is  inflicted  upon  those  who  disre- 
gard the  prohibitions;  but,  and  here  is  the  point, 
such  punishments  are  inflicted  not  simply  because 
it  is  desired  that  the  offenders  shall  suffer  pain,  but 


374  SOCIAL   JUSTICE 

in  the  hope,  either  that  others  will  thereby  be 
deterred  from  sinning,  or  that  some  reformative  or 
educational  influence  will  be  exercised  by  it. 

It  may  thus  be  said  in  conclusion,  that  when  we 
assert  that  law  and  morality  occupy  distinct  fields,  it 
is  meant,  not  that  the  law  never  attempts  to  advance 
morality  or  to  suppress  vice,  but  that  it  never  makes 
moral  guilt  a  test  for  determining,  or  a  standard  for 
measuring,  legal  guilt ;  and,  as  a  necessary  conse- 
quence, that  it  never  inflicts  punishment  except  for 
the  sake  of  some  future  good  to  be  reached  by  it. 

Capital  Punishment.  —  There  is  one  form  of  pun- 
ishment which,  while  it  does  not  logically  call  for 
the  application  of  principles  not  already  discussed, 
is  yet  of  such  a  special  character  as  to  warrant  a 
few  words  of  special  treatment.  We  refer  to  capital 
punishment. 

Beccaria,  as  we  have  already  mentioned,  denied 
that  there  could  be  a  possible  justification  for  the 
infliction  of  the  death  penalty  on  the  ground  of  its 
incompatibility  with  the  original  compact,  which, 
as  he  conceived,  furnished  the  ethical  basis  for  all 
civil  society.  Kant's  answer  to  this  we  have  also 
considered.  But  the  right  to  punish  by  death  has 
been  widely  denied  by  many  who  place  no  faith  in 
the  social-compact  theory.  Those  who  advocate 
reformation  as  either  the  sole  or  chief  aim  of  penal 
law  necessarily  oppose  its  infliction,  for,  as  is  obvious, 
no  idea  of  a  good  to  the  victim  himself  can  be  con- 
sidered a  possible  outcome  from  it.  Others  deny 
its  expediency,  and  therefore  its  justice,  aside  from 


PUNITIVE  JUSTICE  375 

its  abandonment  of  the  reformatory  idea;  alleging 
that,  instead  of  being  morally  educative  to  the 
community  at  large,  it  is  brutalizing,  and  that,  as 
experience  has  demonstrated,  it  is  not  even  deterrent 
to  any  considerable  degree.  This  leaves  only  the 
preventive  aim  for  it  to  realize ;  but  for  this  it  is 
said  life  imprisonment  is  fully  adequate. 

When  the  opposition  to  capital  punishment  is 
put  upon  grounds  such  as  these,  the  question  is 
reduced  to  one  simply  of  fact,  and  can  be  argued 
upon  that  basis.  And  this,  as  we  believe,  is  the 
only  manner  in  which  it  should  be  argued.  There 
are,  however,  a  considerable  number  who  base  their 
denial  to  society  of  a  right  to  inflict  death  upon  the 
a  priori  ground  that  the  right  of  the  individual  to 
his  life  is  of  such  an  absolute  character  that  it  may 
be  violated  under  no  conceivable  circumstances. 

Upon  this  point  we  take  issue  with  them.  As 
our  whole  argument  thus  far  has  shown,  there  are, 
and  can  be,  no  absolute  rights.  It  is  true  that,  inas- 
much as  the  possession  of  life  is  to  the  individual 
a  conditio  sine  qua  non  for  the  enjoyment  of  any 
other  right,  his  taking  off  can  scarcely  be  justified 
so  long  as  we  look  simply  to  his  particular  good. 
When,  however,  we  view  him  as  a  socius,  and  con- 
sider his  rights  from  the  social  standpoint,  this  is  no 
longer  so.  When  so  considered  it  is  easy  to  conceive 
conditions  under  which  the  sacrifice  of  individual 
life  is  the  lesser  of  two  evils.  This  becomes  con- 
spicuous when  a  homicide  is  demanded  in  self-defence 
either  of  an  individual  or  a  nation. 


376  SOCIAL  JUSTICE 

Still,  it  is  not  to  be  understood  that,  even  as 
between  the  life  of  a  nation  and  that  of  one  or  a 
few  of  its  citizens,  the  former  should  always  prevail. 
Whether  it  should  or  not  is  dependent  upon  the 
service  rendered  to  humanity  by  the  national  unit  in 
question. 

Thus  also  as  between  nations,  there  is  no  absolute 
right  inhering  in  any  of  them  to  a  continued  inde- 
pendent existence.  As  Ritchie  says :  "  The  exist- 
ence of  any  particular  organism  (either  a  political 
society  or  any  other)  not  being  of  an  absolute  value, 
but  simply  as  a  means  towards  the  well-being  of 
individuals,  there  can  be  no  absolute  moral  right  to 
self-preservation  in  a  society  against  some  higher  or 
better  type  of  society  in  which  these  individuals  may 
be  absorbed  or  against  the  formation  of  more  closely 
coherent  and  better  societies  out  of  an  ill-compacted 
unity.  .  .  .  The  right  of  self-preservation  in  a 
society  is  only  valid  against  individuals  who  would 
break  it  up  into  mere  chaos,  not  against  any  better 
form  of  society  which  may  take  its  place  "  ^ 

Conclusion.  —  In  the  face  of  an  increasing  material 
prosperity,  a  rising  standard  of  comfort  for  the 
working  classes,  a  widening  diffusion  of  knowledge, 
and  a  general  elevation  of  moral  standards,  not  to 
speak  of  the  strenuous  and  expensive  efforts  made 
by  civilized  States  to  prevent  crime,  a  rapid  decrease 
in  criminality  would  naturally  be  expected,  while  an 
actual  increase  would  seem  impossible.  Neverthe- 
less, opinion  seems  to  be  divided  as  to  whether  or 

1  Natural  Rights,  Chapter  VI. 


PUNITIVE   JUSTICE  377 

not  there  can,  in  fact,  be  traced  during  recent  years 
a  relative  decrease  in  crime  as  compared  with  the 
increase  of  population.  Superintendent  Brockway 
of  the  Elmira  Reformatory  a  few  years  ago  declared 
that  "  every  nation  provided  with  the  means  of 
computing  such  evidence,  reports  a  steady  growth  of 
the  evil  far  greater  than  the  corresponding  increase 
in  population.  The  proportionate  difference  is  espe- 
cially manifest  of  late  years.  It  is  conceded  that 
within  the  past  two  decades,  crime  has  more  than 
doubled."  And  the  eminent  penologist,  M.  Georges 
Vidal,  in  the  introduction  to  his  JPrincipes  fondamen- 
taux  de  la  penalite,  speaks  of  "  la  marche  toujours 
croissante  de  la  criminalite  de  1826  a  1S80" ;  and 
after  quoting  figures  declares  that  "  ce  mal  social 
et  ce  danger  toujours  croissants  ne  sont  du  reste  pas 
speciaux  a  la  France :  Us  sont  generaux  a  tous  les 
pays  civilises.'* 

Other  writers,  however,  either  deny  the  accuracy 
of  the  figures  upon  which  the  above  conclusions  are 
founded,  or  contest  the  validity  of  the  reasoning  by 
which  the  conclusions  are  reached.  Thus  Hon. 
Carroll  D.  Wright  in  a  work  just  published  de- 
clares :  ^  "  The  question  whether  crime  in  this 
country  is  increasing  or  decreasing  has  not  been 
definitely  settled  :  "  for  ^'  although  the  statistics  of 
the  whole  number  of  criminals  or  sentences  for 
crimes  committed  for  any  locality  usually  show 
increase,  and  sometimes  alarming  increase,  they 
bring   out   only   the   superficial    view   of    the   case. 

*  Practical  Sociology,  1899. 


378  SOCIAL   JUSTICE 

There  are  so  many  complications  involved  in  every 
effort  to  ascertain  the  relative  proportions  of  crime 
in  different  countries,  or  communities  of  the  same 
country,  or  at  different  periods  of  time,  that  it  is 
next  to  impossible  even  for  the  expert  to  arrive  at 
a  positive  conclusion  on  the  subject."  ^  Turning, 
however,  from  the  United  States  to  other  countries. 
Commissioner  Wright  is  more  confident.  He  says : 
"  In  countries  where  we  have  statistics  which  avoid 
these  anomalies  and  misleading  comparisons  [which 
exist  in  the  United  States]  the  status  of  crime  is  dis- 
tinctly encouraging."  After  giving  figures  to  show 
a  decrease  in  Great  Britain,  he  declares  that  "  con- 
tinental countries  show  similar  decrease ;  where  the 
execution  of  law  has  been  uniform  the  decrease  is 
apparent." 

Without  attempting  to  harmonize  or  to  decide 
between  these  views,  we  may  draw  one  conclusion  as 
common  to  both.  This  is  that,  however  looked  at,  the 
strenuous  efforts  which  societies  have  made  to  check 
crime  have  at  the  most  done  little  more  than  pre- 
vent its  increase.  This  means,  then,  that  little  suc- 
cess has  been  reached  either  in  the  reformatory, 
educative,  or  deterrent  directions.  As  a  matter  of 
fact,  so  far  as  regards  the  reformatory  idea,  there 
would  probably  be  a  consensus  of  opinion  that,  upon 
the  whole,  criminal  law,  as  it  has  actually  been  ad- 
ministered in  the  past,  has  been  far  more  corrupting 
than  elevating  to  the  individuals  punished.  And  for 
the  future  the  most  sanguine  are  not  inclined   to 

^  Op.  ciL,  Part  VII,  Chapter  XXI. 


PUNITIVE   JUSTICE  379 

believe  that  it  will  be  possible,  even  with  the  most 
approved  methods,  to  make  the  reformation  obtained 
more  than  balance  the  inevitable  corruption  that  pun- 
ishment brings  by  the  evil  associations  it  necessitates, 
and  the  blow  to  pride  and  self-respect  it  gives.  As 
for  the  educative  value  of  punishment,  this  is  in  the 
highest  degree  problematical,  and  many  there  are 
who  would  reduce  its  possible  influence  to  a  very 
small  maximum.  How  far  penal  laws  have  been 
deterrent  it  is  impossible  to  say ;  but  at  the  most,  as 
we  have  seen,  they  have  been  efficient  only  to  the 
extent  of  preventing  an  increase  of  crime.  As  re- 
gards, finally,  the  preventive  idea,  except  where  the 
punishment  of  death  or  imprisonment  for  life  is 
imposed,  little  is  accomplished. 

The  one  lesson,  then,  which  all  these  facts  teach 
us  is  that,  for  a  solution  of  the  problem  of  crime,  the 
real  effort  must  be  to  abolish  the  causes  of  crime,  in 
so  far  as  they  are  dependent  upon  conditions  within 
our  control.  This  means,  in  truth,  entire  social  re- 
generation ;  for  wherever  there  is  injustice,  there 
will  be  crime.  Not  all  crime,  it  is  true,  may  be 
ascribed  to  social  causes.  Some  of  it  is  undoubtedly 
due  to  the  deliberate  choice  of  evil  minds  or  to  the 
promptings  of  the  passions.  But  with  social  justice 
ev^ery where  realized,  with  economic  and  social  rela- 
tions properly  regulated,  and  with  true  education, 
mental  and  moral,  technical  and  academic,  adequately 
applied,  a  long  step  will  have  been  taken  towards  the 
solution  of  the  grave  evil  we  have  been  discussing. 
Though   possibly  exaggerated,  there  is  yet  substan- 


380  SOCIAL  JUSTICE 

tial  truth  in  the  declaration  of  Ferri  that  "  the  least 
measure  of  progress  with  reforms  which  prevent 
crime,  is  a  hundred  times  more  useful  and  profitable 
than  the  publication  of  an  entire  penal  code."  ^ 

A  deterrent  penalty  only  becomes  operative  in 
those  cases  where  it  has  failed  of  effect.  A  reform- 
atory discipline  is  only  applicable  where  the  subject 
of  it  has  already  been  corrupted.  An  educative  law 
presupposes  an  ignorant  or  biassed  mind.  In  very 
large  measure  the  necessity  for  the  enforcement  of 
penal  laws  is  a  demonstration  that  proper  preventive 
measures  have  not  been  taken.  Fundamentally,  then, 
any  penal  system  is  unjust  in  so  far  as  the  necessity 
for  it  might  have  been  avoided  by  proper  social  con- 
duct. Thus,  as  Green  has  said,  "  The  justice  of  the 
punishment  depends  on  the  justice  of  the  general 
system  of  rights ;  not  merely  on  the  propriety  with 
reference  to  social  well-being  of  maintaining  this  or 
that  particular  right  which  the  crime  punished  vio- 
lates, but  on  the  question  whether  the  social  organ- 
ism in  which  a  criminal  has  lived  and  acted  is  one 
that  has  given  him  a  fair  chance  of  not  being  a 
criminal."  ^ 

1  Criminal  Sociology,  p.  135. 
^Principles  of  Political  Obligation,  §  189. 


INDEX 


Absolutb  Rights,  impossibility  of,    Bradley,   F.    N.,    Ethical    Studies^ 


21-26. 

Ahrens,  Naturrecht,  quoted,  208. 

Amiel,  Journal,  quoted,  65. 

Amos,  Science  of  Law,  quoted,  366. 

Anarchism,  as  an  ideal,  311  et  seq. 

A  priori  beliefs,  Spencer's  concep- 
tion of  nature  of,  274. 

Aquinas,  his  classification  of  laws, 
16. 

Aristocracy,  justification  of,  43-46. 

Aristotle,  doctrine  of,  as  to  equality, 
36 ;  criticism  of  Plato's  com- 
munism, 60 ;  his  distinction  be- 
tween corrective  and  distributive 
justice  criticised,  316. 

Babceuf,  communistic  theories  of, 

61. 
Beccaria,  his  theory  of  punishment, 

329. 
Bentham,  J. ,  his  theory  of  property, 

86,  92-94 ;  Defence  of  Usui-y,  cit- 
ed, 120  ;  definition  of  liberty,  237. 
Bismarck,  views  of,  as  to  right  of 

subsistence,  206. 
Blackstone.  Commentaries  on  Law, 

quoted,  .372. 
Blanc,   Louis,    theory   of    right    to 

labor,  205. 
Bohm-Bawerk,  Capital  and  Interest, 

quoted,  120,  124,  133,  154  ;  cited, 

115  n.,  125  n. 
Bonar,    Philosophy    and    Political 

Economy,  quoted,  157,  204. 
Bosanquet,  The  Philosophical  Theory 

of  the  State,  quoted,  250 ;  cited, 

258  n.,  371  n. 


quoted,  330  n. 
Bryce,  J.,  art.  "Equality,"  cited,  35 ; 

quoted,  58. 
Burgess,  Professor,  Political  Science 

and   Comparative    Constitutional 

Law,  quoted,  267. 
Burke,  £dmund,  quoted,  33. 

Cabet,  communistic  theories  of,  61. 
Caird,   Hegel,   quoted,   254 ;   cited, 

261  n.     The  Critical  Philosophy 

of  Kant,  quoted,  200  n. 
Capital  punishment,  374  et  seq. 
Carlyle,  cited,  8. 
Charity  and  Justice,  compared,  49- 

61. 
Christianity,    doctrines    of,    as    to 

spiritual  equality,  39. 
Civil  Equality,  61-54. 
Communism,  59  et  seq. 
Comte,  cited,  8,  9. 
Coercion,  legitimate  sphere  of,  263 

et  seq. 
Consid^rant,    Theorie  du  droit   de 

propriete,  cited,  205. 
Corrective  Justice,  Aristotle's  defi- 
nition of,  criticised,  316. 
Crime,  social  importance  of,  320 ; 

see  Punishment. 
Criminology,  new  school  of,  336  et 

seq. 

Dewey,  Professor  John,  cited,  287  ; 
quoted,  290. 

Distributive  Justice,  canons  of,  107 
et  seq.  ;  labor  theory,  107  ;  effort 
theory,   194 ;  needs  theory,   198 ; 


381 


882 


INDEX 


Aristotle's  distinction  between, 
and  corrective  justice,  316 ;  see 
Justice. 

Economic  Equality,  59  et  seq. 

Effort  theory  of  distributive  justice, 
194. 

Ellis,  H.,  The  Criminal,  quoted, 
337,  338. 

Ely,  R.  T.,  French  and  German 
Socialism,  quoted,  61,  62,  131. 

Equality,  as  an  element  in  distrib- 
utive justice,  29  et  seq.;  different 
kinds  of,  35  ;  spiritual,  35 ;  natural, 
40 ;  civil,  51 ;  political,  54  ;  social, 
58  ;  economic,  59. 

Exploitation  Theory,  121  et  seq. 

Family,  value  of,  as  asocial  element, 

32-35. 
Eichte,  Science  of  Eights,  quoted  as 

to  theory  of  punishment,  34l,  342, 

and  n. 
Fouill^e,  Science  sociale  contempo- 

raine,  quoted,  343  n. 
Fourier,  theory  of,  as  to  right  to 

labor,  204. 
Foxwell,  Professor,  introduction  to 

Menger's  Bight  to  Whole  Produce 

of  Labor,  quoted,  5,  7,  96,  116. 
Franck,  Philosophic  du  droit  penal, 

cited,  343  n. 
Freeman,  E.  A.,  Historical  Essays, 

quoted,  313. 
Freedom,  definition  of,  218. 
French,  Concept  of  Law  in  Ethics, 

quoted,  39. 
Frey,    Sir   E.,    art.    "  Inequality  in 

Punishment,"  quoted,  344. 

George,  Henry,  theories  of,  as  to 
property  in  land,  162-167 ;  crit- 
icism of,  178-193. 

Godwin,  William,  Political  Justice, 
quoted,  30,  41,  119,  322,  324. 

Green,  T.  H.,  Prolegomena  to  Eth- 
ics, quoted,  23,  68  n.,  71,  73,  246  ; 


Political  Obligation,  quoted,  224, 
380  ;  cited,  371  n. 
Grotius,  theory  of,  as  to  property, 
79. 

Hegel,  Philosophy  of  Bight,  quot- 
ed, 215 ;  his  theory  of  punish- 
ment, 354  et  seq. 

Hobbes,  Thomas,  Leviathan,  quoted, 
41,  84. 

Holland,  Elements  of  Jurisprudence, 
quoted,  99. 

Holmes,  0.  W.,  Jr.,  77te  Common 
Law,  cited,  102 ;  quoted,  366, 
368  n. 

Hume,  Of  the  Social  Contract, 
quoted,  312. 

Huxley,  Thomas,  Natural  and  Po- 
litical Bights,  quoted,  142,  182  ; 
Evolution  and  Ethics,  quoted, 
276,  283,  284;  criticism  of,  285 
et  seq. 

Hyslop,  Professor,  Elements  of 
Ethics,  quoted,  218. 

Ideals,  importance  of,  in  social  and 

political  life,  1  et  seq. 

Impartiality,  as  an  element  in  jus- 
tice, 29. 

Insurance,  working-men's,  206. 

Intent,  legal,  defined,  364. 

Interest,  justification  of,  133-139 ; 
see  Usury. 

Janet,  Histoire  de  la  science  poli- 
tique, quoted,  312. 

Jenks,  Laio  and  Politics  in  the 
Middle  Ages,  cited,  103  ;  quoted, 
347. 

Justice,  idea  of,  in  early  times,  13; 
according  to  Sophists,  14  ;  Plato 
and  Aristotle,  15  ;  defined,  20-25  ; 
compared  with  charity,  49-51. 

Kant,  ethical  system  of,  18-20 ; 
theory  of  property,  102,  209 ; 
Philosophy  of  Law,  quoted,  244 ; 


INDEX 


383 


theory  of  right,  259  ;   theory  of 
punishment,  326  et  seq: 
Kidd,  Benjamin,  Social  Evolution, 
cited,  216,  280;  doctrines  of,  ex- 
amined and  criticised,  293  et  seq. 

Labor,  right  to,  203. 

Labor  theory  of  distributive  justice, 
131-155. 

Land,  right  of  property  in,  Chapter 
VI;  Locke's  view,  110. 

Law,  does  not  seek  distributive 
justice,  103-106  ;  its  relation  to 
morality,  363  et  seq. 

Lecky,  W.  E.  H.,  History  of  Euro- 
pean Morals,  quoted,  347. 

Legal  theory  of  property,  83-106. 

Liberty,  defined,  218. 

Life,  right  to,  375  et  seq. 

Lilly,    W.    S.,   Bight   and    Wrong, 
quoted,  225. 
V      Locke,  John,  conception  of  natural 
law,  17  ;  theory  of  property,  107- 
114  ;  theory  of  usury,  120. 

Mackenzie,  Professor,  Introduc- 
tion to  Social  Philosophy,  quoted, 
21  n.,  33,  194. 

Maine,  Sir  Henry,  cited,  36. 

de  Maistre,  cited,  8,  9. 

Malice,  legal,  defined,  367. 

Mallock,  Aristocracy  and  Evolution, 
cited,  294  n. 

Malthus;  Robert,  Essay  on  the 
Principle  of  Population,  quoted, 
105. 

Marx,  Karl,  Das  Kapital,  cited,  131. 

McTaggert,  art.  "  Hegel's  Theory  of 
Punishment,"  cited,  314  n.,  357  n. 

Mellone,  S.  H.,  art.  "  Some  of  the 
Leading  Ideas  of  Comte's  Positiv- 
ism," quoted,  249  n. 

Menger,  The  Right  to  the  Whole 
Produce  of  Labor,  quoted,  4,  104, 
116,  125  n.,  203,205. 

Middle  Ages,  characteristics  of 
thought  of,  8,  16. 


Mill,  J.  S.,  Utilitarianism,  quoted, 
29  ;  doctrine  of  equality  criticised, 
70-74  ;  Difficulties  of  Socialism, 
quoted,  74 ;  Political  Economy, 
quoted,  76,  144  ;  theory  of  prop- 
erty in  land,  158-162,  193 ;  Essay 
on  Liberty,  quoted  and  criticised, 
238  et  seq. 

Montesquieu,  theory  of  property  of, 
83. 

Morality,  its  relation  to  law,  363  et 
seq. 

Motive,  legal,  defined,  365. 

Natural  Equality,  40-51. 
Natural  Law,  according  to  Sophists, 

14  ;  Socrates,  15  ;  in  Middle  Ages, 

16 ;    Aquinas,    16 ;     Locke,    17 ; 

Kant,  18-20  ;  defined,  223. 
Needs,  theory  of,  as  to  distributive 

justice,  198. 
Nemours,    Dupont   de,    Origine   et 

progres    d'une    science    nouvelle, 

quoted,  157. 

Occupation  Theory,  as  to  right  of 
property,  79-83  ;  to  what  extent 
recognized  by  the  law,  100-103. 

Opportunity,  for  development,  a 
right,  47  et  seq. 

Paine,  Thomas,  Common  Sense, 
quoted,  313. 

Physiocrats,  doctrines  of,  as  to 
property,  114. 

Plato,  communism  of,  60;  his  con- 
ception of  equality,  36. 

Political  Equality,  54-58. 

Pollock,  Sir  Frederick,  First  Book 
of  Jurisprudence,  quoted,  101,364. 

Proal,  Le  crime  et  la  peine,  cited, 
340  n. 

Property,  right  of,  occupation 
theory,  79  ;  legal  theory,  83  ;  labor 
theory,  107  et  seq.  ;  in  land. 
Chapter  VI ;  effort  theory,  194 ; 
needs  theory,  198. 


384 


INDEX 


Proudhon,  communism  of,  61-65  ; 
theories  of,  as  to  property,  125- 
130;  What  is  Property?  quoted, 
as  to  natural  equality,  43. 

Punishment,  theories  of,  retributive, 
322  et  seq.  ;  utilitarian,  358  et  seq. 

Rashdall,  quoted  as  to  right  of 
punishment,  330,  333,  344  n.,  345, 
357  n. ;  art.  "Justice,"  cited,  69  n. 

Retributive  theory  of  punishment, 
322. 

Revenge,  346  et  seq. 

Ricardo,  David,  influence  of  doc- 
trines of,  upon  development  of 
socialism,  118,  124. 

Rights,  no  absolute,  21-25. 

Ritchie,  David,  Natural  Bights, 
quoted,  68,  376 ;  Darwin  and 
Hegel,  quoted,  140. 

Rodbertus,  socialistic  theories  of, 
122,  130,  153. 

Rousseau,  theory  of,  as  to  property, 
81,  88,  92  ;  distinction  of,  between 
the  volonte  generale  and  the  vol- 
onte  de  tous,  257. 

Salmond,  J.  W.,  art.  "The  Law  of 
Nature,"  quoted,  18. 

Salter,  W.  M.,  quoted,  227. 

Schurman,  J.  G.,  Ethical  Import  of 
Darwinism,  cited,  17  ;  Review  of 
Spencer's  Justice,  quoted,  281. 

Seligman,  E.  R.  A.,  cited,  186  n. 

Service,  obligation  of,  201. 

Simon,  Jules,  cited,  313. 

Smart,  Professor,  introduction  to 
Bohm-Bawerk's  Capital  and  In- 
terest, quoted,  133,  134. 

Smith,  Adam,  Wealth  of  Nations, 
quoted,  92 ;  views  of,  as  to  labor 
theory, 114. 

Social  Equality,  58-59. 

Socialism,  practical  difficulties  of, 
144-155. 

Socrates,  ethical  philosophy  of, 
15. 


Sophists,  ethical  philosophy  of,  14. 

Spence,  Thomas,  The  Meridian  Sun 
of  Liberty,  cited,  158. 

Spencer,  Herbert,  theory  of,  as  to 
property  in  land,  168  et  seq.  ; 
criticism  of,  178  et  seq. ;  Data  of 
Ethics,  quoted,  247  n. ;  doctrines 
of,  as  to  competition  among  men 
examined  and  criticised,  269  et 
seq.  ;   Social  Statics,  quoted,  312. 

Spiritual  Equality,  35-40. 

Stephen,  Leslie,  Social  Eights  and 
Duties,  quoted,  33,  291. 

State,  the,  its  right  to  be,  229  et  seq. 

Stephen,  Sir  James  Fitzjames,  Lib- 
erty, Equality,  Fraternity,  cited, 
56,  236,  240 ;  quoted,  57 ;  his 
theory  of  punishment  criticised, 
350  et  seq. ;  his  doctrine  of  co- 
ercion, 264. 

Stoics,  doctrine  of,  as  to  equality, 
37-39. 

Subsistence,  right  to,  203. 

Suffrage,  right  to,  55. 

Taxation,  ethical  basis  of  a  just 

system  of,  186  and  n. 
Thompson,    William,    An   Inquiry 

into    the    Principles   of   Wealthy 

cited,  117,  125. 

Usury,  history  of  doctrines  of, 
119-121. 

Utilitarianism,  part  played  by  idea 
of  equality  in,  67-74  ;  its  justifica- 
tion of  the  state  criticised,  237  et 
seq. 

Velleity,  218. 

Vidal,   Principes  fondamentaux  de 

la  penalite,   cited,    343  n.,  361  ; 

quoted,  362,  377. 
Vindictive   theory  of    punishment, 

see  Retributive  theory. 

Wallace,  A.  R.,  theory  of,  as  to 
property  in  land,  167. 


INDEX 


385 


Wheeler,  B.  I.,  Life  of  Alexander 

the  Great,  quoted,  253. 
Wieser,     Natural     Value,    quoted, 

133  n. 
Willoughby,  W.  F.,  Working-meii'' s 

Insurance,  quoted,  206. 
Willoughby,  W.    W.,    The  Nature 

of  the  State,  quoted,  223,  307. 


Windelband,  History  of  Philosophy, 

quoted,  38. 
Working-men's  Insurance,  206. 
Wright,  C.  D.,  Practical  Sociology, 

quoted,  377. 

Zeller,  History  of  Greek  Philos- 
ophy, quoted,  37. 


34  8  6 


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